ADA does not require the creation of a work-sharing as accommodation | Smith Debnam Narron Drake Saintsing & Myers, LLP


The Americans with Disabilities Act (ADA) requires employers to provide a disabled employee with reassignment to an existing vacant position for which the employee is qualified if no other accommodation exists and the employee would lose their job due to because of his disability. However, in a recent opinion in the case of Lost c. Sanofi-Aventis US, LLC, the Fourth Circuit Court of Appeals, which presides over federal district courts in North Carolina, South Carolina and Virginia, held that an employer was not required to create a shared job as housing ADA.

In Lost, the complainant was a sales representative with an autoimmune disease that ultimately limited the time and distance she could travel for her job. Her employer had already accommodated her disability by allowing her to share the responsibilities of her job with a colleague. However, when travel restrictions forced her to move to another territory, her manager rejected her proposal for a job sharing arrangement accepted by her colleague and subsequently terminated her employment due to his inability to work.

The sales representative filed a complaint alleging that her employer failed to consider her disability as required by the ADA. The district court dismissed the lawsuit, citing the lack of a vacant position for the sales representative. The Fourth Circuit confirmed the dismissal, holding that the ADA reassignment obligation only applies to vacant and existing posts, which did not exist in this case. The sales territory in question had one full-time sales position, which was not designated as a shared position. Therefore, the manager was not required to create such a position to accommodate the sales representative. Neither the fact that the employer had already offered a job-sharing agreement to the representative as accommodation in her previous territory nor the fact that the representative’s colleague was willing to share her work were considered relevant to the court analysis.

This decision reiterates that although employees with disabilities may request accommodations to enable them to perform their duties, they may not require fundamental changes to the job or to the essential functions of their position. In addition, the position requested must be both vacant and existing.

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