Creating a new “job sharing” position is not a reasonable accommodation

You work for a progressive employer. Flexible work arrangements? For sure!

Your company’s flexible work policy permits telework, flexible hours, and part-time work and with manager approval.

But, flexible work arrangements are not an entitlement. Managers will approve or deny a flexible work arrangement based on business conditions and satisfactory performance.

Managers can also approve another flexible work arrangement known as job-sharing, where two employees each handle 50% of a standard position. Job sharing also requires two employees to share a job voluntarily.

So, let’s say that we have an employee with a disability. Let’s call her “Plaintiff.” Plaintiff wants to share a job with a co-worker to perform the essential functions, and the co-worker agrees. However, for reasons unrelated to Plaintiff’s disability, e.g., the co-worker is not an appropriate candidate for job sharing, the manager does not approve the job share.

Assuming the company has engaged in good faith in an interactive dialogue with Plaintiff to explore reasonable accommodations, and nothing else exists, has the company violated the Americans with Disabilities Act by not permitting the job share?

Don’t answer yet.

What if I told you that, years earlier, the company approved a job share for Plaintiff and another employee.

Ok, now that you have the full picture, do we have an ADA violation? According to the Fourth Circuit Court of Appeals (opinion here), the answer is no:

If the job share in question did not exist at the time it was proposed as an accommodation, the ADA does not require the employer to create the new position to accommodate a disabled employee. At [the company], a part-time job-share position does not exist unless and until the Area Business Leader approves an employee’s proposal. Such a proposal thus asks [the employer] to create a new part-time position. And that is an accommodation the ADA does not mandate. So the plaintiff’s claims cannot succeed.

Got that? Creating a new position is not a reasonable accommodation under the ADA.

Well, probably not.

Consider the following:

1. Your mileage may vary from this Fourth Circuit opinion. The Fourth Circuit includes WVA, VA, MD, and the Carolinas. Plus, state and local laws may be more employee-friendly.
2. If a vacant position already exists for which the employee is qualified, that is a reasonable accommodation (albeit an accommodation of last resort).
3. Business judgment notwithstanding, if your company has a consistent track record of creating new positions for employees without disabilities, you may have to do the same for employees with disabilities.