Reasonable Accommodation?

CJK7

Sticky situation that needs some expert advice! We have an employee who has migraines. His physician said that he must work on 1st shift (7am-3pm) instead of 3rd shift (11pm - 7am). We accommodated him when he requested this over 2 years ago. We now have a business need to move him back to 3rd shift. We had a second opinion performed which indicated that he could work any shift as long as it was consistent and not sporatic. If we don't move him back to 3rd shift we will have to move another employee who has more senority. This will cause a hardship for the other employee.
Therefore, is it reasonable to move another employee with more seniority in order to accommodate this employee? How far do we have to go?

awilliams

CJK7:
Your posts asks two questions: 1) what is an undue hardship when evaluating whether to give an employee an accommodation, and 2) can you take seniority of other employees into account when deciding to give an accommodation?

In evaluating whether you need to give a reasonable accommodation to an employee, the correct analysis is whether granting the accommodation would cause the EMPLOYER an undue hardship. I think you may have gotten off track a bit, if you are considering the impact on other employees. The correct analysis is whether keeping the disabled employee on the 1st shift, and moving another employee (even one with more seniority) is an undue hardship for your company. An undue hardship is a difficult burden to meet if your disabled employee files suit, so I would evaluate this carefully. An undue hardship usually, but not always, means that it is too expensive to give the employee the accommodation. From your facts, it does not look like you would meet the standard of an undue hardship.

Keeping that in mind, if you have a bona fide seniority system – such as a seniority system in your collective bargaining agreement – the ADA does not require you to violate that system. What this means is that you need not grant a bargaining unit employee's proposed accommodation when it would violate the CBA's bona fide seniority system. Thus, you don't violate the ADA by denying such an accommodation. You need not choose between exposing yourself to liability for ADA violations and liability under your contracts with unions. But remember the seniority system must be bona fide, it cannot be something that is put in place just to avoid complying with the ADA.

If you would like to read more about the ADA and bona fide seniority systems, we have posted on the website an article from one of our Employment Law Letter newsletters. You can read the article at:

[url]http://www.hrhero.com/national/bonafide.shtml[/url]


Good luck!

Anne Williams,
Attorney Editor