The ADA Does Not Require Employers to Replace Others to Accommodate You.

The Americans with Disabilities Act, often referred to as the "ADA," prohibits employers from discriminating against certain individuals with disabilities when making employment decisions. This includes decisions relating to job application procedures, hiring and firing practices and policies, promotions, discipline, compensation, job training and many other "terms, conditions and privileges of employment."

Reasonable accommodations must be provided

Along with prohibiting discrimination, the ADA requires employers to make reasonable accommodations for disabled applicants or employees. A reasonable accommodation is simply an adjustment or modification an employer provides to enable individuals with disabilities to have equal employment opportunities. Of course, accommodations vary depending on what each individual needs, and not all individuals with disabilities will need the same accommodations.

Under the ADA, an employer is "required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability…" The term "undue hardship" means that, if the accommodation requires significant difficulty or expense, the employer may not be required to provide that accommodation. According to a recent case in Kentucky, there is another exception to the requirement of providing an accommodation.

Accommodations cannot displace other employees

The ADA requires an employer to reassign an individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location), as long as the employee is actually qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the employee is qualified. However, there is no requirement to make a position vacant for that employee.

In August of 2013, the United States District Court for the Eastern District of Kentucky heard a case involving a Lexington woman who suffered from anxiety and depression, which was considered a disability. Her requested accommodation was to be assigned to a different shift. One issue in that case was whether her requested accommodation was "reasonable." The District Court ultimately decided that "this duty [to accommodate] does not require employers to create new jobs [or] displace existing employees from their positions… in order to accommodate a disabled individual." As such, the employee was not entitled to the accommodation.

The same reasoning was used in another accommodation case, involving pregnancy. In Young v. UPS decided in January 2013, the Second Circuit Court of Appeals held as follows:

employers are not required to create additional employment that it would not otherwise have created, discharge any employee, transfer an employee with more seniority than the employee requesting the reasonable accommodation, or promote any employee who is not qualified to perform the job.

This means that, if you need some type of accommodation for your disability, it may be necessary to consider all options in order to find an accommodation that works both for you and your employer, but does not affect other employees in the performance of their duties. If you have any questions or concerns about your rights under the ADA, or any other issue regarding your employment, feel free to contact Wrady & Michel, LLC either online or by calling us at (205) 265-1880.

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