Employers do not need to recreate accommodations that do not exist to help employees with disabilities

Federal anti-discrimination laws, such as the Americans with Disabilities Act and the Rehabilitation Act, help ensure that individuals with disabilities have the same rights and opportunities at work as everyone else.

Both laws require employers to provide individuals with disabilities with reasonable accommodations if needed to perform the essential functions of their jobs. However, when a failure-to-accommodate claim gets litigated, the onus is on the employee to establish that they could perform their jobs, even with reasonable accommodations.

For example, I read a Fifth Circuit decision last night involving a plaintiff employed as an administrative assistant. Her duties were as expected: performing technical assistance, managing supplies, drafting correspondence, and other administrative support procedures.

Sadly, she was diagnosed with breast cancer. She began chemotherapy treatment and eventually stopped working for the defendant before going on FMLA. The plaintiff could not return to work after transitioning to “Leave Without Pay” status. So, the defendant terminated her employment.

The plaintiff later sued, claiming that a reasonable accommodation of her disability would have enabled her to perform the essential functions of her job. Specifically, she argued that the defendant should have offered her a “desk-job accommodation” but didn’t.

Remember, the plaintiff bears the burden of requesting reasonable accommodations, and that one even exists to enable her to perform the job’s essential functions. An employer need not provide what it does not have.

Here, the plaintiff had no evidence that a “desk-job accommodation” existed and was vacant. The closest she got was some deposition testimony of the defendant’s accommodations coordinator, who stated that desk jobs existed.

Existed. As in the past tense.

The plaintiff offered no evidence that she was qualified for these positions or that any such position existed or was vacant when the defendant ended her employment.

Plus, the plaintiff presented a note from her doctor stating that the plaintiff was “totally impaired from working,” and that seemingly confirmed that the plaintiff could not work in a “desk-job accommodation,” even if one were available.

Ultimately, the Fifth Circuit affirmed the dismissal of the lawsuit.

When an employee notifies an employer that they have a disability and need help doing their jobs, the employer must engage with that employee to determine what, if anything, it can do to accommodate them. While this duty to accommodate is interactive, and the employer must act in good faith, providing the employee’s first choice of accommodation or any other accommodation that does not exist is not required.

“Doing What’s Right – Not Just What’s Legal”
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