To accommodate or not to accommodate
By James H. Kizziar, Jr., Esq., Special Labor Counsel for Employment Matters
hile the ADA requires reasonable accommodation of an
employee’s disability to permit
the employee to perform his or her job’s
essential functions, the FMLA does not
mandate any similar accommodation.
What is an employer to do when an employee attempts to return from FMLA
leave but cannot perform a job’s essential
functions because of a disability?
A federal appeals court recently examined and claried this issue. Marlen
Reza worked on the production line at
IGT as a product tester. At the time she
took the medical leave that resulted in
her lawsuit, she was paid an additional
10 percent for her work as lead product
tester, a position that served as a liaison
between the production line and other
departments within IGT. The production
area itself covers more than 1.5 million
square feet and is extremely fast paced
and loud. Production line leads must be
able to communicate verbally and faceto-face. Due to the speed of the pace and
the fact that many employees with whom
lead communicates are not at desks,
written communication—especially by
email—is not feasible.
In August 2004, Reza took a medical
leave for thyroid and tracheostomy surgeries, which left her unable to speak
above a whisper. She was provided with
FMLA leave, which was to run concurrently with IGT’s six-month medical
leave. After Reza requested reinstatement in December 2004 to work, she
was notied by IGT that she could return
to work as a product tester. However,
since she was unable to speak, Reza
could not perform the lead duties and
therefore would not be permitted to resume her former position as a lead product tester with the additional 10 percent
pay differential.
On the following day, Reza’s physician informed IGT that she would be in
rehabilitation until March 2005. Reza
returned to work in a light duty position
consistent with her other restrictions in
late March, but soon left, complaining
that she had issues with certain “smells,”
W
and that she was afraid
she would “faint dead
away.” She never returned to work and was
terminated when her
six-month IGT leave
expired. She sued, alleging violations of both
the FMLA and the
ADA.
Reza based her
FMLA claims on the
fact that when she attempted to return from
leave in December
2004, IGT refused to
restore her to the lead
product tester position, but instead provided her with a position that was not
equivalent because she would not be
receiving the 10 percent pay differential
or performing lead duties. While the
court agreed that the position IGT offered to Reza was not equivalent in pay
or duties, the court dismissed her FMLA
claim because Reza’s lead position was
eliminated while she was on leave and
because she was unable to perform the
lead position’s essential function of verbal communication and was thus not
entitled to restoration. The court held
that IGT was under no obligation under
the FMLA to offer Reza another
position.
However, the court observed, IGT’s
obligations did not end there. The FMLA
regulations note that even though an
employee may not be entitled to restoration following FMLA leave if the employee cannot perform the essential
functions of his or her former position,
the ADA may obligate the employer to
accommodate the employee.
Reza argued that although she requested that IGT accommodate her inability to speak, it “refused to discuss or
implement” any accommodations that
she suggested to the company. However,
the court also dismissed Reza’s ADA
claims because Reza could not perform
the lead position without reasonable accommodation, and her suggested accom-
modations—communicating by email or
instant messaging—were not feasible.
Noting that reassignment is also considered a reasonable accommodation, the
court further held that IGT had met its
obligation when it offered Reza the position of product tester, even though the
position was not equivalent in pay and
duties.
James H. Kizziar, Jr. is a partner with Bracewell
& Giuliani LLP in the firm’s San Antonio,
Texas office. He is Special Counsel to TAA
for labor and employment issues. He represents management in all aspects of labor and
employment law.
RECAP
Employment
Update
Q A federal appeals court recently
addressed the issue of reasonable accommodation for an employee returning from FMLA
leave who cannot perform
essential job functions.
February 2010 3