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‘Make work’ accommodation may backfire

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in Employment Law,Human Resources

Here’s a cautionary tale for employers tempted to create a “make work” accommodation designed to drive a disabled worker to quit. Courts are likely to take a dim view of such a cynical strategy.

Recent case: Robert worked as a regional accounts representative for a company that sold countertop materials. His job consisted of tracking complaints and answering questions on the phone while typing customer information into a software program.

At a company-sponsored sales meeting, Robert participated in a game that involved chugging a beer and then bending over to pivot around a baseball bat placed between the player’s forehead and the ground. The goal: To spin for the number of seconds it took to chug the beer.

It’s all drunken fun and games until someone falls and hurts himself. Robert did, badly injuring his shoulder.

He eventually returned to light-duty work, performing his old job from home. However, his doctors said he could not do any typing. That meant he fell behind in his work. His employer placed him on medical leave again.

Meanwhile, the company hired a replacement.

While Robert was on leave, the company discussed what to do if he should return. Someone suggested creating a position for him that involved painting every wall and then painting them again when that was done.

When Robert did return, he was assigned to photograph countertop slabs, which required moving slabs with a forklift and getting down on the ground to take pictures. That didn’t work out either, and Robert went out on FMLA leave. Ultimately, he was terminated.

He sued, alleging failure to accommodate by creating a position that set him up for failure. The court agreed he had a case and ordered a trial. (Latham v. Cambria Company, No. 16-0561, CD CA, 2017)

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