Fourth Circuit: ADA Does Not Require Employers Create Job-Sharing Positions As A Disability Accommodation (US)
The United States Court of Appeals for the Fourth Circuit—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia – clarified in an opinion issued on June 8, 2021, that the Americans with Disabilities Act (“ADA”) does not require employers to create an entirely new position to accommodate an employee’s disability. More specifically, the Court held that a new, part-time job-sharing position that requires managerial approval to create is not a reasonable accommodation because the ADA does not require companies to create new positions to accommodate their employees with disabilities.
In 2013, Janet Purdue, a long-time sales representative for a large international pharmaceutical company, was diagnosed with antisynthetase syndrome, a chronic autoimmune disease. That same year, Ms. Perdue underwent brain surgery to remove a tumor that was impacting her sight and movement, and subsequently took a ten-month leave of absence from work. When Ms. Perdue returned to work, she was assigned to a job-sharing position in her original sales territory, where she worked at 60% capacity. Ms. Perdue eventually returned to full-time work, and in 2017, was reassigned to a territory that required four hours of daily travel.
Unfortunately, Ms. Perdue’s disease, in combination with the high volume of travel required of a full-time pharmaceutical sales representative, caused her to develop unmanageable joint pain and stiffness. Ms. Perdue’s doctor informed her that although she had previously been able to work full-time, she could not return to full-time work under the circumstances and should thus explore part-time options. Shortly thereafter, Ms. Perdue inquired about a permanent job-sharing position where she and another representative would share the sales and travel of one territory. Her employer’s policy at the time for handling flexible work arrangements such as job-sharing stated that positions were “available for discussion between employers and their managers,” but ultimately required manager approval.
After considering Ms. Perdue’s proposal, the territory manager decided that the creation of a job-sharing position was not in the best interest of the company and offered Ms. Perdue other travel accommodations in her current position to help manage her pain and stiffness (which she turned down). Soon after, Ms. Perdue was placed on long-term medical leave, and eventually, her employment was terminated. In 2018, Ms. Perdue filed suit in the Western District of North Carolina alleging, among other things, that her employer failed to accommodate her autoimmune disease in violation of the ADA when it refused to reassign her to a job-share position. The district court granted her employer’s motion for summary judgement on all claims, stating in particular that Ms. Perdue’s ADA claim turned on the fact that the job-sharing position was not vacant and therefore was unavailable for accommodation.
On appeal, the Fourth Circuit affirmed the district court’s holding, but stated that Ms. Perdue’s ADA claim instead turned on the fact that the position did not exist, as “a position cannot be vacant unless it already exists.” The Court explained that although the ADA’s definition of reasonable accommodation is broad, it does not require an employer to create a new job-sharing position.
It is well-established that the ADA prohibits employers from discriminating against qualified individuals on the basis of disability. It is also well established that the ADA requires employers to engage in an interactive process with a disabled employee to determine if it can provide the employee with a reasonable accommodation that will allow the employee to perform the essential functions of her position, so long as that accommodation does not pose an undue hardship for the employer. Reasonable accommodations can include job restructuring, part-time or modified work schedules, or reassignment to a vacant position. However, the ADA does not require that an employer create a new position, or that it transfer another employee to make a position vacant for the purpose of reassigning the disabled employee.
When Ms. Perdue requested the permanent job-sharing position in 2017, only one full-time position existed in that territory. In a job-sharing scenario, two employees work part-time to fill one position, thereby necessarily creating an additional position. Thus, her proposed accommodation did not amount to reassignment to a vacant position. Instead, her requested accommodation would require a manager’s agreement to reorganize the full-time position into two separate part-time positions, staffed by two employees, and thus creating an entirely part-time position that did not otherwise exist. The Court reasoned that such an agreement is entirely discretionary and “is something the ADA does not demand” because it encroaches on a company’s core management policies. Notably, the Court held that the employer’s benevolence in previously allowing Ms. Perdue to participate in a job-sharing position when recovering from extensive brain surgery did not require that it to create a new job-sharing position in this instance because an employer’s previous “generosity and overall flexibility does not raise the legal standard.”
The Fourth Circuit’s decision, in this case, provides a good reminder that although broad in its protections, the ADA does have its limits, and employers may lawfully decline to provide an employee’s requested accommodation, particularly if it would force them to create a new full-time position or a part-time job-sharing position where one does not already exist.
Squire Patton Boggs Summer Associate Sydney Finley contributed to this post.