ADA reasonable accommodations test may not include temp jobs
Q&A with Nathan Whatleypublished in The Oklahoman | September 21, 2010
McAfee & Taft labor and employment attorney Nathan Whatley was featured in The Oklahoman discussing the 10th Circuit of Appeals recent decision to not require an employer to bump a temporary employee in order to open a position for a disabled employee under the Americans with Disabilities Act (the “ADA”).
The case involves a Georgia Pacific employee, who suffered from cystic fibrois, being transferred to a different department due to outsourcing. Finding his new environment unsuitable due to paper dust, he asked for his old position back. Having it occupied by a a temporary worker, due to the complement of the outsourcing process, GP refused the employee’s request.
According to Whatley, “Assignments-like all accommodations under the ADA-must be considered in the context of reasonableness.” A reasonable accommodation under the ADA, Whatley explains, is when a vacant position is involved. “If a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than simply consider the disabled employee, along with other applicants; the employer must offer the vacant position to the disabled employee as a form of accommodation.”