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ADA Claims Fail When Employee Accepts Lateral Transfer

November 4, 2020

The Americans with Disabilities Act (ADA) has always been important for employers, and it has become increasingly so as the unprecedented COVID-19 pandemic continues to impact workplaces and businesses across the country and globe. A recent decision by the U.S. Court of Appeals for the Fourth Circuit provides additional guidance and contours regarding the ADA— and it reaffirmed the basic principles surrounding the reasonable accommodation process under the Act.

The Fourth Circuit recently held that when an employee accepts a transfer in her position as a reasonable accommodation, she cannot later successfully claim disability discrimination based on either failure to accommodate or retaliation under the ADA. The Fourth Circuit Court of Appeals covers appeals from all federal district courts out of South Carolina, North Carolina, Maryland, Virginia, and West Virginia.

The Case

In Laird v. Fairfax County, a county employee with multiple sclerosis was unable to continue the essential functions of her job due to her medical disability. She approached her employer about a reasonable accommodation and, after discussing alternatives with her, the employer agreed to create a new position for the plaintiff at the same level of pay that would allow her to work from home. 

The plaintiff later filed suit alleging disability discrimination, failure to accommodate under the ADA, and retaliation under the ADA, among other claims. The plaintiff asserted that her transfer was in effect a demotion and was the result of discrimination against her based on her disability. She further argued that she was adversely affected by the transfer because her “opportunity for future promotion” had been hurt.

The court unanimously held that even if the new position could be considered an effective “demotion,” the plaintiff had no viable claim under the ADA because she voluntarily requested and accepted the lateral transfer. 

The full opinion is available here.

Guiding Principles 

As explained by the court in Laird, under the ADA, an “employer must generally provide a reasonable accommodation—like a ‘modified work schedule[]’— to enable a qualified person ‘to perform the essential functions of [a] position.’ But the ADA does not require an employer to provide this accommodation when doing so would ‘impose an undue hardship on the operation of [its] business.’” 

The legal standards that courts use to evaluate a claim for retaliation under the ADA and a claim for failure to accommodate are different, but both generally require the plaintiff to show “adverse action” resulting from an employer’s alleged actions. In Laird, the court expressly held that the plaintiff’s claims failed because she voluntarily requested and accepted the transfer of positions: “If an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.” 

The court further held, regarding the retaliation claim, that an “alleged retaliatory action must be materially adverse, meaning that the plaintiff must show that the action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Employer Takeaways

Keeping the general principles surrounding the ADA in mind, including the steps involved in the interactive discussion and reasonable accommodation process, is as important as ever as businesses and employers face increasing demands and requests from employees in light of the COVID-19 pandemic.

As always, employers should fully document employee accommodation requests and discussions, including the employee’s consent or acceptance of any changes or reasonable accommodations offered. Maintaining these records is critical and provides evidence to aid in defending against possible future claims of discrimination or retaliation, as demonstrated by Laird.

While the Laird case involved an employee with multiple sclerosis, reasonable accommodation and ADA issues may also arise in the context of COVID-19 in a variety of ways. Most common are requests to work remotely due to an employee’s increased risk for serious illness. CDC guidelines provide a list of those underlying medical conditions that place a person at increased risk for serious illness from COVID-19, available here

It is important that employee requests for accommodation or other concerns about COVID-19 are carefully and properly considered in light of these extraordinary times dealing with the pandemic. It is critical that employers follow the steps required by the ADA and reach out to legal counsel for guidance when questions or issues arise.  

General guidelines for employer considerations when faced with a potential ADA issue:

If an employer has information that a disability may be interfering with an employee’s ability to perform his or her job, the following steps are advisable:

  1. Identify the need for a reasonable accommodation (employee request)
  2. Engage in the ADA interactive process and discussion
  3. If needed, obtain medical information or additional information from the employee
  4. Retain documentation of the entire process and resolution of interactive process – and be sure to comply with confidentiality laws regarding any medical information

Nexsen Pruet’s experienced Employment and Labor Law Team stands ready to assist employers with any questions or issues regarding the ADA. Nexsen Pruet’s COVID-19 Resource Page is available here.

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