In a recent case, the U.S. Court of Appeals for the Fourth Circuit held that creating a new job-share position for an employee with a disability doesn’t constitute a reasonable accommodation under the Americans with Disabilities Act (“ADA”). There, the court decided that if the job-share at issue didn’t exist at the time the accommodation was proposed, the ADA doesn’t require a new position be created to accommodate an employee with a disability. This rule offers additional guidance on what is considered a reasonable accommodation under the ADA.

Perdue v. Sanofi-Aventis, U.S., LLC

In Perdue v. Sanofi-Aventis, Janet Perdue began working for Sanofi as a pharmaceutical sales representative in 2011. In 2013, Purdue was diagnosed with antisynthetase, an autoimmune disease. Perdue began noticing issues with joint pain and stiffness due to her autoimmune disorder. The business leader in her area requested that Perdue be considered for a job share or another open position near where she resided. Perdue’s doctor soon determined Perdue was unable to work for at least three weeks and Sanofi approved her request for FMLA. Her doctor ultimately imposed medical limitations preventing Perdue from traveling more than 20 miles and working more than 30 hours a week.

Perdue submitted a proposal for a job-share for her role with another sales representative, but Sanofi denied the request to create a job-share position. Perdue continued on her short-term disability and then applied for long-term disability, but was fired soon after. Sanofi stated that Perdue’s termination was because it could not provide her “with an indefinite leave of absence” and noted there were no other accommodations that would enable Perdue to perform the essential functions of her job.

Perdue sued Sanofi alleging violations of the ADA because of Sanofi’s failure to accommodate. Under the ADA, employers are prohibited from discriminating against a qualified individual on the basis of a disability. Discrimination includes failure to make reasonable accommodations unless the employer can show that the accommodation would impose an undue hardship on its business.

To show a failure to accommodate, an employee must establish that (1) she had a disability, (2) her employer knew of her disability, (3) that a reasonable accommodation would permit her to perform the essential functions of her position, and (4) that the employer refused to make the accommodation. At issue here is whether or not Perdue identified a reasonable accommodation that would enable her to perform her job.

Here, the Fourth Circuit explained that a reasonable accommodation includes a modification or adjustment to the work environment or the manner or circumstances under which the position held is customarily performed. Reasonable accommodations include job restructuring, modified work schedules, reassignment to a vacant position, or other similar accommodations. Perdue argued that the job-share was essentially a “reassignment to a vacant position,” which is an accommodation required under the ADA. However, the court found that the proposed job-share wasn’t a required accommodation under the ADA, because the ADA only requires reassignment to a vacant position which already exists. The court held that a part-time job-share position that requires managerial approval to create does not constitute a reasonable accommodation under the ADA because the ADA does not require employers to create new positions to accommodate employees with disabilities. The court explained that to constitute a reasonable accommodation, Perdue must show that the job-share position was both vacant and existing, which she is unable to do. Sanofi allows employees to apply to create a job-share position, but it’s not an entitlement and the position did not exist at the time Perdue requested it. 

What Does Perdue v. Sanofi-Aventis, U.S., LLC Mean for Employers?

Discrimination cases are decided based on the specific circumstances surrounding each issue, but this case can offer helpful guidance for factually similar scenarios. Here, the court provided more discussion on what may be considered a reasonable accommodation under the ADA. The court here seemed to focus on the fact that the specific job-sharing position Perdue requested didn’t yet exist and Sanofi policy required manager approval to create job-share positions. The court noted that for reassignment to another position to qualify as a reasonable accommodation, the position must both exist and be vacant. Here, since the job-share position didn’t exist, the ADA did not require Sanofi to create a new position to accommodate Perdue. The court didn’t blanketly say that job-sharing would never qualify as a reasonably accommodation, so if there was a vacant and available position, the court may have found differently. An important take away from this case is that while employers are required to provide reasonable accommodations to qualified individuals with disabilities, they do not necessarily need to make every specific accommodation requested by employees, and moreover, they do not need to create positions to accommodate employees. 

If you have an employee requesting an accommodation and are unsure if it’s required by the ADA, it’s best to consult with counsel knowledgeable about what accommodations are considered reasonable and are required under the ADA. If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 703-991-7973. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia.