To say that compliance with the American Disabilities Act (ADA) is challenging for employers is an understatement, particularly when attendance and leave situations are at issue. However, a recent Eleventh Circuit decision, Spears v. Charlie Creel, No. 14-12261(11th Cir. 2015) provides some very useful clarification to employers regarding engaging in the interactive process to identify reasonable accommodations.
Lisa Spears was working as a lieutenant in a jail medical unit in Wakulla County, Florida when her position was eliminated. Spears requested a transfer to a lieutenant position in the corrections department but no positions were available. Instead, she was offered a Shift Detention position. Shift Detention Deputies worked rigid, rotating twelve-hour shifts. When offered this position, Spears disclosed, for the very first time, that she was undergoing cancer treatment.
Spears again requested a transfer to a lieutenant position that would allow her to work an eight-to-five work shift and take intermittent FMLA leave. The Sheriff’s Office denied her request because there was not a vacant lieutenant position. Spears’ doctor provided a letter stating she could not perform the Shift Detention Deputy tasks related to the use of force, and her employment was terminated because she was unable to perform the essential functions of the Shift Detention position.
In her lawsuit, Spears argued that the Sheriff’s Office failed to engage in the interactive process because she had proposed reasonable accommodations (a transfer to a non-shift, light duty or part-time position until she was able to return to work; and an extension of her leave by using donated leave from other employers) that were rejected. The Sheriff’s Office argued that Spears never identified a reasonable accommodation that would allow her to perform the essential functions of the Shift Detention position. The Eleventh Circuit affirmed the lower court’s granting of summary judgment in favor of the Sheriff’s Office. The Court held that Spears’ request to transfer to a light-duty or part-time position until she could return to work full-time was not a reasonable accommodation under the ADA.
The Court further held that the ability to work shift hours and a consistent schedule were essential functions of the Shift Detention position. In reaching this decision, the Court relied on the job description that listed, among other responsibilities, “performance standards” “arriving on time” and “working the entire shift.” The Court held that changing the position to both light duty and part-time was not a reasonable accommodation as it would cause uncertainty in scheduling, cause other officers to be held over from other shifts or called in on their days off, and increase the amount of overtime others worked.
The Court reaffirmed that the ADA does not require employers to reallocate job duties in order to change the essential functions of the job, and that the Sheriff’s Office was not required to create a lieutenant supervisory position or to bump another employee from a position to create one.
Importantly, the Court rejected Spears’ assertion that the use of donated leave time was a reasonable accommodation because there was no evidence that Spears ever requested this accommodation. The Court held: “because there has been no suggestion that Spears followed [the required procedure to use donated leave] or otherwise requested an extended period of leave, the Sheriff’s duty to provide an accommodation or to engage in an informal interactive process with respect to that accommodation was not triggered. ” Quite simply, if an employee cannot identify a reasonable accommodation to the employer, then an employers’ lack of investigation into any such reasonable accommodation is of no consequence.
- An accommodation is reasonable only if it allows the employee to perform the essential functions of a job.
- If an employee fails to identify a reasonable accommodation the employer has no affirmative duty to engage in the interactive process or to show undue hardship.
- Job descriptions are key in determining essential functions. If regular, reliable attendance and punctuality are true essential functions of a position, employers should include it in a written job description.