Even if the incumbent employee is willing to share a full-time job, the employer is not required to permit such an arrangement as a reasonable accommodation, according to the U.S. Court of Appeals for the Fourth Circuit.
In Perdue v. Sanofi-Aventis U.S., LLC, the employee was unable to work full-time because of a disability. A fellow employee was willing to job-share her full-time position. However, the job-share proposal was denied. The employee was subsequently terminated after being unable to return from leave, and she sued for violation of her rights under the ADA, including for failure to accommodate.
The Fourth Circuit held that an employer does not have to provide a job-sharing opportunity with a willing partner as a reasonable accommodation. According to the Fourth Circuit, “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.” Thus, if the job-share requires the employer’s approval, the employee is not entitled to the job-share as an accommodation.
This case reinforces the principle that creating a new position is not a reasonable accommodation under the ADA, and that the modification of a full-time position into a job-sharing arrangement is, in fact, the creation of a new job.