Wednesday, March 14, 2018

Employer Can’t Be Penalized for “Bending Over Backwards” to Accommodate Disability

Let’s say you have a long time employee who becomes disabled. While the employee can’t perform all of the essential functions of their assignment, you want to allow the employee to keep working in hopes that they will recover well enough to resume their regular duties, so you assign the employee to a different job, the duties for which they have no restrictions. Despite being allowed to work in that modified position for over a year, it becomes apparent that the employee is still not able to perform all of the essential duties of his original job. Is there no turning back at that point?

Earlier this year, a federal court examined that very question. In Moore v. Wal-Mart Stores East, LP, the plaintiff had worked for Wal-Mart for several years when he suffered a stroke. After returning from medical leave, he could not perform his job of _______ so the company accommodated his current disability by placing him in another position, the duties of which he had no restrictions, with the understanding that the job was not permanent and but was a light duty assignment while he continued his recovery. He worked in that job, apparently without incident, for 15 months when he was called to a meeting with HR to discuss his continued inability to return to his job prior to his stroke.

Pursuant to the interactive process, the plaintiff was ultimately offered a different permanent position with the company. The problem was that he didn’t adapt well to that new job and the company ultimately discharged him for performance deficiencies.

The plaintiff sued his former employer, alleging a violation of the Americans with Disabilities Act. He argued, among other things, that the fact that the company allowed him to work an alternative assignment for 15 months, evidenced that it could have continued to allow him to work in that assignment longer, maybe indefinitely.

The court disagreed. Quoting a federal case from Illinois, it found that an employer that “bends over backwards” to accommodate a disabled worker “must not be punished for its generosity” by being found to have agreed to the reasonableness of the accommodation by virtue of the length of time that it allowed the accommodation to continue.

This is good news for employers because it confirms once again that employers are not obligated under the ADA to create or maintain permanent light duty positions. Employers who have light duty programs are not at risk of somehow creating a situation where an employee can persuasively argue that because a light duty assignment exists, they are entitled to remain in it indefinitely.