I hope everyone has had a safe and happy holiday season.
Here are two links to some interesting employment law developments from the
past couple of weeks, along with a little analysis. Check back for a year-in-review
look at some of our blog posts tomorrow.
We have previously looked at some of the requirements of the
ADA. Here, the Employer Handbook examines how the Rehabilitation Act may require
an employer to transfer a disabled employee so that he or she has better access
to continuing medical care. The Rehabilitation Act prohibits discrimination in
federal employment, and is interpreted by courts as imposing obligations
similar to those required by the ADA.
As we have seen,
federal law requires employers to provide an employee with reasonable accommodation
if necessary to allow the employee to perform the essential functions of his or
her position. The exception is where the accommodation would cause an undue
burden on the employer and thus be unreasonable. Reassignment to a vacant
position can be a form of reasonable accommodation. However, here the 10th
Circuit ruled that even if the employee can perform the essential functions of
her position, the Rehabilitation Act might require more action on the part of
the employer. The Court wrote that:
[E]mployers are not relieved of their duty to accommodate
when employees are already able to perform the essential functions of the job.
Qualified handicapped employees who can perform all job functions may require
reasonable accommodation to allow them to (a) enjoy the privileges and benefits
of employment equal to those enjoyed by non-handicapped employees or (b) pursue
therapy or treatment for their handicaps. In other words, an employer is
obligated not to interfere, either through action or inaction, with a
handicapped employee’s efforts to pursue a normal life.
In sum, employers need to show that a potential transfer for
better medical care would constitute an undue burden, which can be a high
standard to meet. Employers hoping to make this argument should be able to
produce hard evidence demonstrating how the transfer would be extremely costly
and thus unreasonable. In general, employers should always be looking for
constructive solutions that will be mutually beneficial- and make decisions
that do not involve legal action.
Finally, in other news, the American Arbitration
Association (AAA) has been sued in New Jersey for a Fair Credit Reporting Act
violation. The plaintiff claims his application for employment with the AAA was
rejected due to a bad credit report that he was not given the chance to contest.
The AAA is probably the nation’s most prestigious provider of ADR services.