The Americans with Disabilities Act (ADA) generally prohibits covered employers from discriminating against employees or applicants on the basis of disability. One form of such discrimination is failing to provide reasonable accommodation to a qualified individual with a disability unless the requested accommodation would pose an undue hardship upon the employer. The ADA refers to possible forms of accommodation, such as job restructuring, modified work schedules, and transfer to a vacant position. However, on June 8, 2021, the U.S. Court of Appeals for the Fourth Circuit (which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina) held that the ADA does not require employers to create a job-sharing position for a disabled employee as an accommodation. See Perdue v. Sanofi-Aventis U.S., LLC (4th Cir. 6/8/21).
Perdue was a pharmaceutical sales representative employed by Sanofi-Aventis. She developed an autoimmune disease and had to undergo surgery. The employer granted her a ten-month leave of absence to recover, after which the employer then approved Perdue to return to work in a job-sharing arrangement with another coworker. When the coworker later resigned, Perdue went to a regular full-time position. However, she subsequently experienced additional medical issues, for which the employer granted her another leave of absence. She was ultimately released to return to work with a maximum 30-hour per week work restriction. Perdue requested that the employer provide to her another job-sharing position which would allow her to split the work schedule with another coworker. Upon review, the employer denied Perdue’s requested accommodation on the grounds that “the business would not support a job share arrangement” at that time. When Perdue exhausted short-term disability leave benefits, her employment was terminated by Sanofi-Aventis.
Perdue filed suit against Sanofi-Aventis, claiming that the company failed to provide reasonable accommodation to her in violation of the ADA. When the federal district court dismissed her case on summary judgment, Perdue appealed to the Fourth Circuit Court of Appeals.
Perdue argued on appeal that Sanofi-Aventis had a duty to provide to her the job sharing arrangement because that action would have constituted a transfer to a “vacant” position — which is a required form of accommodation under the ADA. However, the Fourth Circuit rejected this argument. Pursuant to the company’s job-sharing program, any placement of an employee into a job sharing position required the approval of company management. Because the facts were undisputed that such approval had not been given, the Fourth Circuit concluded that the job sharing position did not actually exist. Therefore, it could not have been vacant at the time Perdue requested the transfer. Based on these facts, and because the ADA does not require an employer to create a job in order to accommodate a disabled employee, the Court held that Perdue’s failure to accommodate claim was properly dismissed by the lower court.
The Fourth Circuit’s decision demonstrates that while the ADA is broad in application, its protections do have limitations. Employers must understand their responsibility to provide reasonable accommodation to qualified individuals with disabilities, and to engage in the interactive process with such individuals to explore possible accommodations. However, the employer has specific rights in this process, which include the right not to create a job position for a disabled employee or to provide other accommodation which would result in an undue burden. Each requested accommodation should be assessed on the basis of the particular facts and circumstances. Given the complexity of such cases which often overlap with considerations under the FMLA, workers compensation, and other laws, Employers should consult with their employment counsel when making decisions regarding accommodation under the ADA.