Employer Did Not Fail to Make Reasonable Accommodation When it Denied a “Preferable” (But Not Required) Daytime Shift; Employee’s Retirement was Responsible for Breakdown of Interactive Process
By Ted Olsen
The Fifth Circuit Court of Appeals ruled that the Americans with Disabilities Act does not require an employer to give an employee a daytime shift when such a shift is deemed by his doctors to be "preferable," but not required. Moreover, the Court held that - by retiring only two weeks after the employer denied his request for daytime work - the employee was responsible for the breakdown of the interactive process, and therefore, the employer did not fail to make reasonable accommodation for the employee.
In Griffin v. United Parcel Svs., Inc., No. 10-30854 (5th Cir. Oct. 19, 2011), an insulin-dependent Type II-diabetic employee - after 28 years of service - took a medical leave of absence and received outpatient counseling for recurring numbness and pain. When he returned to work, his physicians restricted him to part-time work for three weeks, a restriction that was observed by UPS. The employee was then assigned to a full-time job on the night shift, the company explaining that his previous full-time position was no longer available. Griffin asked for a schedule on the day shift as an accommodation under the ADA. The medical documentation in support of this request, however, did not state that daytime work was a requirement, just that it was "preferable." Griffin was informed that his request for day shift work was not supported by his documentation. Two weeks later, the employee tendered his retirement papers.
Both the district court and the Court of Appeals ruled the employer was entitled to prevail on Griffin's ADA claims, as a matter of law. Much of the appellate court decision in Griffin is devoted to the question of whether the diabetic employee was "disabled" under the ADA before the 2008 Amendments (he was not). However, most importantly, the Fifth Circuit decided that, even if he had been "disabled," the employer's denial of his daytime work request was not a failure to accommodate, based on the medical documentation. His doctors' information did not indicate that day work was required for the management of his diabetes. Further, even if the initial denial had been a failure to accommodate, Griffin's retirement only two weeks after working on the night shift was found to have caused the breakdown of the interactive process between the parties. "Where an employee terminates the interactive process by voluntarily retiring, it is difficult to discern what measures may have been taken had accommodation discussions continued," reasoned the Court.
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©2011 Sherman & Howard L.L.C. November 1, 2011