Accommodation requires completely new job? Disabled employee must give it an honest try
The ADA requires employers to offer disabled employees reasonable accommodations that allow them to perform the essential functions of their jobs.
The process of finding a reasonable accommodation is supposed to be an interactive one. Employer and employee are both obligated to keep the lines of communication open as they consider different options.
Employers aren’t required to create new positions to meet the disabled employee’s needs. However, they must consider the employee for open positions that he or she may be qualified to perform.
But what happens if an employer offers an employee an open position that he may need training to perform? According to a recent decision, the worker has an obligation to give the new job a try.
Recent case: Derrick worked as a manual laborer and supervisor for the city of Austin. When he was injured in an on-the-job auto accident, he took FMLA leave to begin recovery. However, he could not return to his old job right away.
The city allowed Derrick to stay out on leave while it looked for other open positions consistent with his medical restrictions.
After about a year off, Derrick’s doctors released him to return to a desk job. The city then told Derrick that it had an open administrative assistant position. He accepted the offer and went back to work despite having limited computer and typing skills.
Things did not go well as Derrick resisted training. When his supervisor recommended various courses that would help him improve his skills, Derrick ignored the suggestions. Derrick’s computer and typing skills did not improve.
Instead of working or training, he was found playing computer games and surfing the Internet, sleeping, making personal calls and applying for other positions within the city. His supervisor later testified that Derrick repeatedly missed work without proper notice, came late and left early and lied about his time.
The city produced evidence that he attended work only 74% of the time over a 21-week period. As a result of his performance and behavior issues, the supervisor gave him an unsatisfactory year-end evaluation. He was soon discharged.
Derrick sued, alleging he should have been placed in a different position, not one that he said he was clearly unqualified to do.
The court disagreed. Essentially, it ruled that a disabled worker is obligated to try to succeed at an offered job even if he initially doesn’t have the skills necessary. That’s especially true when the employer offers training programs to help the disabled worker succeed. The court dismissed the case. (Dillard v. City of Austin, No. 15-50779, 5th Cir., 2016)
Final note: It doesn’t hurt to offer a disabled employee an open position that he may or may not be able to perform—as long as you also provide adequate training.
Remember, the ADA requires an interactive accommodations effort in which both parties have to cooperate. Show your good faith effort to integrate an injured worker back into work. Just make sure you keep track of the training opportunities you offer and the worker’s response.