UPS did not need to create a new position as an accommodation, court says

Dive Brief:

UPS did not violate the Americans with Disabilities Act (ADA) when it refused to provide accommodations requested by a worker returning from surgery and then terminated him; the worker was not a "qualified individual" under the law, the 5th U.S. Circuit Court of Appeals ruled (Gonzalez v. United Parcel Service, No. 18-50903 (5th Cir. July 31, 2019)).
After the surgery, the employee had numerous restrictions, as concluded by his doctor: He was incapable of continuous repetitive upper-body movements and could not work for longer than four hours. He also had impaired decision-making and concentration abilities. The employee requested a part-time position and an ergonomic work station. UPS could provide an ergonomic work station but did not have any part-time jobs available; the employee would have been disqualified from part-time work at UPS in any event due to his diminished cognitive abilities, the court said.
The 5th Circuit upheld a summary judgment ruling in favor of UPS. The employee's "physical and cognitive impairments directly affected the core requirements of his job," the court said. "His request for part-time work would require UPS to essentially create a new position for him. That is not a reasonable accommodation required by the ADA," the court said.

Dive Insight:

The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities (both employees and applicants), unless doing so would create an undue hardship.

In general, according to the Equal Employment Opportunity Commission (EEOC), "an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."

A person who, as in this case, is not able to perform the essential functions of his or her job even with a reasonable accommodation is not considered a "qualified individual" under the ADA.

The EEOC provides several examples of possible reasonable accommodations:

Making existing facilities accessible.
Job restructuring.
Part-time or modified work schedules.
Acquiring or modifying equipment.
Changing tests, training materials, or policies.
Providing qualified readers or interpreters.
Reassignment to a vacant position.

The EEOC specifically notes that an "employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position."

What makes an accommodation "reasonable"? An accommodation, says the EEOC, is "reasonable" if it "seems reasonable on its face...ordinarily or in the run of cases...if it appears 'feasible' or 'plausible.'" This is a somewhat vague definition, but it highlights the importance of a good-faith interactive process.

Experts have told HR Dive that consistency, compliance, and communication are crucial to meeting the ADA's requirements. Additionally, employers should have an accommodation policy in place before it's needed.