Friday, September 2, 2016


That old saying “where there’s a will there’s a way” has practical applications with this court decision pertaining to accommodations. The Sixth Circuit Court of Appeals recently ruled that the employer (BellSouth) did not have the obligation to create a permanent light-duty job as a reasonable accommodation. 

Let’s start from the beginning. The employee worked for BellSouth for over 30 years, where his most recent job was a facility technician. His job was installing and repairing internet and telephone equipment and it required him to work in various types of weather conditions. The employee was prevented from working his job when he developed a blood clot and was restricted from climbing, wearing boots, and being in cold weather.

Initially, the employee’s limitations were thought to be temporary, so BellSouth allowed the employee to do a few different light-duty jobs around an office. In February, the company learned that the limitations would be permanent and, instead of creating a permanent light-duty position, they advised the employee of the options under the applicable collective bargaining agreement, one of which was to receive 40 weeks of pay and placement in a job bank where he could apply for open positions in BellSouth. The employee chose that option.

The employee never applied for any jobs during that period and after the 40 weeks elapsed, he was discharged. He later filed suit against BellSouth for failure to accommodate his injury, claiming that he thought that BellSouth should have worked with him and told him about available positions. 

Normally, an employer under the ADA may be obligated to inform an employee of vacant positions for which he or she may qualify as part of providing a reasonable accommodation to that employee. In this case, the court granted summary judgment to the employer, finding that it had followed the collective bargaining agreement, which did not require the employer to inform the employee of open positions. The employer’s motion for summary judgment was granted to the BellSouth.

The employee in this situation didn’t have any initiative to ask about new jobs in the firm, even though he was technically required to do so, and he found himself in trouble. The employer in this case provided a reasonable accommodation, although it clearly was not enough in the eyes of the employee. Hindsight being 20/20, had the employee exercised initiative to look for vacant positions. Similarly, employers should note that they can avoid the cost and distraction of litigation if they make it clear through the interaction process what the employee is expected to do as part of the reasonable accommodation.