Terminating the Employment Relationship

operating a mail sorting machine since the employee was hired primarily to operate this machine and it was an essential function of the job. 101

Similarly, a court held that the Rehabilitation Act did not require an employer to reasonably accommodate its special agents or investigative specialists, who were insulin-dependent diabetics, by placing them on permanent limited duty since such placement would be a "fundamental alteration" in the nature of the positions in question. 102 In another case, a court held that an employer, the Equal Employment Opportunity Commission, did not discriminate against a blind applicant when it failed to hire him for the position of research analyst, which required extensive reading. The Court rejected the applicant's position that he be provided with a reader since hiring a reader would mean that the essential functions of the job would be performed by the reader rather than the disabled individual. 103 An example of job restructuring as a reasonable accommodation in law enforcement might involve altering the job to allow a detective in a wheelchair to perform only office work such as telephone interviews, personal interviews at the station and report writing while his/her partner does all of the field work. Job restructuring may not be a reasonable accommodation where less demanding, vacant positions exist. A California Court of Appeal held that where such positions exist, it may not be a reasonable accommodation to restructure an existing position and that reassignment would be required in the absence of a showing of undue hardship. 104 v. Modifying Work Schedules Another form of job restructuring is altering when and/or how an essential function of the position is performed. For example, an essential function which is customarily performed in the morning may be rescheduled at a later time in the day. Or a job which is ordinarily performed at the office can be performed at home at the employee's convenience. This type of reasonable accommodation may also include providing flexibility in work hours or the work week, or part- time work, provided that the accommodation does not cause an undue hardship on the employer. vi. Flexible Leave Policies Flexible leave policies should be considered as a reasonable accommodation when employees with disabilities require time off from work because of their disabilities. An employer is not required to provide additional paid leave as an accommodation, but should consider allowing use of accrued leave, advanced leave, or leave without pay, provided that the accommodation does not cause an undue hardship on the employer. An employer may be required to provide unpaid leave beyond the employer’s policy if it is a reasonable accommodation and does not impose any undue hardship on the employer. 105 Courts have held that an employer is not obligated by the reasonable accommodation provisions of the ADA to keep an employee on indefinite leave while recovering from a disability. 106

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 45