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ADA: No requirement to create brand-new job

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in Employment Law,Human Resources

Disabled employees may be entitled to transfer to an existing and open position, but they have no right under the ADA or the Rehabilitation Act to demand a job be created specifically as an accommodation.

Recent case: Bridgett worked in HR at a regional U.S. Postal Service location. She took several FMLA leaves after injuring her foot and having multiple operations over the years to repair the damage.

She asked to be transferred to a different location, apparently as a reasonable accommodation for her foot. But at the time, that facility was undergoing renovations. There was no office space into which she could have been placed. Plus, there were no openings available.

Bridgett eventually filled several different positions at her location, each in HR and each at the same pay as before.

Bridgett sued, alleging failure to accommodate her transfer request.

But the court tossed out her lawsuit, noting that she had not identified an open position that she was qualified to perform. She had instead simply demanded that her employer create one at a specific location. That’s not required. (Cross v. Post Master General, 3rd Cir., 2017)

Final note: Bridgett also demanded “training opportunities” but never specified which ones she had allegedly been denied. Instead, she testified that she had “put the requests out there as a general statement,” and “wasn’t asking for anything” specific. That wasn’t good enough.

Employees who claim they have been denied training opportunities only have a case if they can point to specific training they requested and then can show they were turned down—and that this somehow harmed their ability to earn more, get better benefits or qualify for promotions. A general statement that a worker wants more training isn’t enough.

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