The U.S. Supreme Court recently put an end to a delivery driver’s case against UPS for allegedly denying him disability accommodations that he requested. On Nov. 6, the court declined to hear the case.
UPS is an Atlanta-based shipping company with more than 500,000 employees in over 200 countries. It did not respond to a request for comment.
In 2017, a UPS delivery driver in Parkersburg, W.Va., began experiencing pain in his back, hip and buttocks resulting from hip bursitis. His route required him to drive a truck with a capacity of 600 cubic feet, but that size truck had a stiff suspension, which made for a rough ride that aggravated his pain.
After UPS accommodated his request for a better-padded seat, he still could work only sporadically until October 2018. He then asked to drive a van with a capacity of 300 to 400 cubic feet, which would have a softer suspension and provide an easier ride. UPS determined the smaller vehicle would require that the driver either complete his route in multiple trips or give part of his route to another worker. The company claimed neither option was reasonable because they would both violate a collective bargaining agreement, according to court documents.
UPS noted that the collective bargaining agreement restricted drivers to working no more than 9.5 hours per day. It said doing multiple trips with a smaller vehicle would require the driver to work more than 9.5 hours per day and result in substantial cost increases in terms of maintenance; wear and tear on the vehicle; and fuel and oil usage, according to court documents.
The driver requested an inside job as an accommodation, but the company said there were no openings for inside work at the time. Instead, it offered to allow him to take an unpaid leave of absence until he healed, according to court documents.
After several months of leave, the driver returned to work in a larger truck suited to his route. He sued, alleging that UPS’ refusal to provide him with the accommodations he requested violated his rights under the Americans with Disabilities Act (ADA). A district court ruled in favor of UPS, concluding that the driver had not shown that the accommodations he requested were reasonable. It said an unpaid leave of absence constituted a reasonable accommodation under these circumstances. On July 10, the 4th U.S. Circuit Court of Appeals agreed with the district court.
‘No Bright-Line Rule’ on Reasonable Accommodation
The ADA prohibits employers from discriminating against an employee with a disability if the employee can perform the essential functions of the job with a reasonable accommodation. The ultimate discretion to choose among reasonable accommodations rests with the employer, although the employer and the employee should try to identify one together through conversations known as the “interactive process.” Under the ADA, an accommodation is not reasonable if it does not enable the employee to perform all the essential functions of the job, the circuit court noted.
“Determining whether a particular accommodation is reasonable involves a fact-specific inquiry in every case. Unfortunately, there is no bright-line rule applicable in every situation,” said Leslie Eason, an attorney with Gordon Rees Scully Mansukhani in Atlanta.
Allowing a modified schedule or reallocating marginal job functions could be a reasonable accommodation, said Erinn Rigney, an attorney with K&L Gates in Chicago.
“Reasonableness varies based on the physical or mental limitations that the employer is being asked to help address, the cost relative to the income of the employer as a whole, and the impact on the operations of the business,” explained Tracey Levy, an attorney with Levy Employment Law in Rye, N.Y. “An employer does not have to create a job that does not exist or change any of the essential functions of the job.”
In this case, the driver’s disability created a temporary—rather than a permanent—need for an accommodation. Whether the accommodation is temporary or permanent is a relevant question in legally determining reasonableness, Levy said.
For example, “it might be reasonable for an employer to allow an employee to work remotely for four to six weeks to heal from a recent procedure, or as an interim accommodation before the employee undergoes some type of corrective surgery that will resolve the employee’s impairment,” she said.
Because bodily symptoms and other factors may change over time, employers should “regularly check in with the employee to ensure the accommodation achieves its intended goal. It is permissible to explore different alternatives if the employee’s needs change, or if the original accommodation proves ineffective,” Eason said. “All such communications should be thoroughly documented.”
With jobs that are physically demanding, employees might request light duty as a disability accommodation.
“Generally, there is no requirement to create a light-duty position,” Eason said. “However, an employer can reassign an employee to a vacant, pre-existing light-duty position on a temporary or permanent basis as a reasonable accommodation,” if doing so would not create an undue hardship for the employer.
Ultimately, applying disability accommodations fairly and consistently can help employers avoid discrimination lawsuits.
“Employers should aim to avoid the appearance of having contrived essential functions only after an employee requests an accommodation,” Eason said. “Any job description that defines a role’s essential functions should be regularly reviewed and updated as necessary.”