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Recent Cases under the ADA

jjorgensen.jpgWe are going to see more and more claims brought under the Americans With Disabilities Act ("ADA"). Three (3) recent cases highlight the type of issues employers may increasingly encounter.

At the heart of the ADA, is the concept of reasonable accommodations. In one case, the issue is whether the ADA requires employers to make reasonable accommodations (typically in adjusting work schedules) to an employee so she can care for a disabled parent or child.

The answer to a related question is "yes". The ADA prohibits "associational discrimination". In other words, an employer cannot discriminate against an employee because of the known disability of an individual with whom the employee has a relationship or association (i.e., family member).

For example, an employer cannot fire an employee because it fears the employee will miss too much time caring for a family member with cancer. Similarly, that same employee cannot be fired because the employer fears its insurance rates will increase because the employee's family member has cancer.

However, the ADA does not require the employer to provide reasonable accommodations to care for the family member with the disability.

The ADA does not require employers to reasonably accommodate employees who do not themselves have a disability. However, if the employer is covered by the Family and Medical Leave Act, a qualified employee may be entitled to unpaid leave or intermittent leave to care for a parent with a serious health condition.

The question of reasonable accommodations was addressed in two (2) other cases. Reassignment to a vacant position can be a possible reasonable accommodation for disabled workers. Can the employer refuse to transfer the disabled employee if it believes that another - and non-disabled - employee is better qualified for the vacant position?

A court has held that the transfer must be automatic, even if there is another more qualified candidate - at least in most instances. The only exception occurs if the employer can establish specific facts unique to it that would create such an undue hardship that a mandatory transfer, not based on merit, would be unreasonable.

In other words, unless an employer can establish undue hardship (a difficult standard to meet), the ADA requires employers to reassign disabled workers to open positions for which they are qualified, even if the disabled worker is not the most qualified candidate.

The third case answered the question whether allowing an employee to move from rotating shifts to straight daytime work is a required reasonable accommodation under the ADA?

The court ruled for the employer, determining that the rotating shift was an essential function of the employee's position. It found that the employer had included the rotating shift in its written job description. Because the employee could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation.

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