Determining what is a reasonable accommodation under the Americans with Disabilities Act (ADA) is meant to be an interactive process between the employer and the employee. However, after exerting significant amounts of energy in the process, one Illinois employer got a reaction it had hoped to avoid—a lawsuit.
Norway, We Aren’t
In 2004, “Cathy” began working as a security officer at one of Exelon Nuclear Security’s nuclear generating stations in Braceville. In August 2011, she gave birth to a baby, and she returned to work about one month later. In April 2012, she became angry during a shift for no reason. She later told her supervisor that she was not feeling the same and wanted to talk to the workplace nurse. Cathy explained to the nurse that she was short-tempered, irritable, and anxious and discussed family- and work-related stress she was experiencing.
Cathy received a mandatory referral to Exelon’s employee assistance program, which included a required leave of absence. She took leave under the Family and Medical Leave Act (FMLA) and received mental health counseling from a social worker and a psychiatrist. The professionals diagnosed Cathy with depression and anxiety.
Coal Miner’s Daughter
On September 19, 2012, Exelon informed Cathy that she had exhausted her FMLA allotment as of July 20, 2012. “Mona,” an HR employee, told Cathy that Exelon had not received notification from her healthcare providers that she had been released to work with or without a reasonable accommodation. Thus, Cathy could not return to her armed security guard position.
Mona also told Cathy that if she was released to return to work and could perform the essential functions of her position with or without a reasonable accommodation, she would be considered for open and available armed security guard positions. Further, Mona explained that Exelon would give Cathy 60 days to search and apply for open positions at the company and that Cathy needed to let her know as soon as possible if she wanted to do that.
Cathy did not inform Mona or Exelon’s HR department that she wanted to look for another position. On October 29, 2012, Cathy’s attorney contacted Exelon to request an accommodation or extended paid leave of absence. The attorney also stated that Cathy had applied for nonsecurity positions.
In response, Mona searched for open positions for which Cathy was qualified and determined that an office service specialist (OSS) position, a clerical job, was the only suitable position. The job description for the OSS position stated that applicants had to pass the Support and Administrative Selection System (SASS) test, which assessed clerical skills. Cathy did not pass the SASS test and therefore was told she did not qualify for the OSS position. Because there were no other available positions for which she was qualified, her employment was terminated.
Transference
Cathy filed a lawsuit against Exelon in federal court claiming the company discriminated against her under the ADA by failing to provide her a reasonable accommodation. She claimed Exelon failed to accommodate her disability by refusing her request to be transferred to a position other than armed security officer.
To establish a failure to accommodate claim under the ADA, Cathy had to show that (1) she was a qualified individual with a disability, (2) Exelon was aware of her disability, and (3) Exelon failed to reasonably accommodate her disability. Exelon did not dispute that it was aware of her disability. Thus, the issues in dispute were whether she was a qualified individual with a disability and whether Exelon failed to reasonably accommodate her.
Under the ADA, a “qualified individual” is a person who can perform the essential functions of the position sought with or without a reasonable accommodation. To determine whether a person is a qualified individual, courts use a two-part process.
First, the court must determine whether the person satisfies the prerequisites for the position. The court asks whether the person has the requisite educational background, experience, skills, and licenses. Second, the court asks whether the individual can perform the essential functions of the position with or without an accommodation.
Time Bomb
The district court reviewed Cathy’s request for an accommodation (i.e., that she be transferred to an alternative position) and determined that she did not meet the definition of “qualified individual.” After receiving the attorney’s letter requesting an accommodation, Mona searched for open positions Cathy might have been qualified for and found only the OSS position. However, passing the SASS test was a prerequisite for the position, and Cathy did not pass the test. Accordingly, the district court determined that she was not a qualified individual.
The district court also found that even if Cathy was a qualified individual, there was no evidence that Exelon failed to reasonably accommodate her disability because she could not show there was a vacant position for which she was qualified. For those reasons, the federal court entered judgment in favor of Exelon without a trial. Gunty v. Exelon Nuclear Security, No. 14 C 4756 (N.D. Ill., Apr. 18, 2017).
Fuel for Thought
One question employers often ask is whether they must create a new position or move another employee to create a vacancy for a disabled employee. In this case, the federal court explained that in certain circumstances, reassigning a disabled employee to a vacant position may be a reasonable accommodation if she can no longer perform the essential functions of her job. However, the court reiterated that the ADA does not require employers to create a new position or move another employee to create a vacancy for a disabled worker.
This article was written by Kelly Smith-Haley of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. She can be reached at ksmithhaley@fslc.com.