Under the Americans with Disabilities Act (ADA), employers are required to consider reassignment to existing vacant positions as a potential accommodation.  But what happens when an employee requests that an employer create a new position as an accommodation?  This question was recently addressed by the Fourth Circuit in Perdue v. Sanofi-Aventis U.S., LLC.  The plaintiff – Perdue – was a sales representative with an autoimmune disorder who was allowed to split the workload of her position with another employee, subject to her manager’s approval.  When Perdue was transferred to a different territory, she contacted her manager and proposed a similar job-sharing arrangement with another employee.  Although her co-worker had already agreed to the job-sharing arrangement, the employer denied their request to create the job share and explained that “the business would not support a job share arrangement” at that time. Perdue was terminated based on her inability to work and she later sued for failure to accommodate under the ADA.

To make a failure to accommodate claim, an employee must prove that:

(1) she had a disability;

(2) her employer knew of her disability;

(3) a reasonable accommodation would permit her to perform the essential functions of position; and

(4) the employer refused to make accommodation.

The Fourth Circuit sided with the employer and held that this was not a “reasonable accommodation” because the job share position that Perdue sought did not already exist.  In some circumstances, the ADA can influence how anemployer fills its vacant positions, even if that requires the employer to override otherwise neutral company policies; however, the ADA cannot require an employer to create a new position as an accommodation.  

The takeaway is clear: there is a limit to how far an employer must go to accommodate a disabled employee.  While the disabled employee may request transfers to existing vacant positions, they cannot request changes to the essential nature of their positions or request that new positions be invented specifically for them.

If you have any questions about the ADA, or any area of employment law, contact Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com.  Follow us on: