In part 2 of his series on job restructuring, the author explores how job restructuring could affect other employees besides the disabled person being accommodated. To read part 1, see ‘Job Restructuring’ as a Reasonable Accommodation in Federal Employment.
An interesting aspect of job restructuring is that an employer’s decisions with respect to making such an accommodation could have a tangible impact on employees other than the disabled person being accommodated. An employer may be required to reallocate the non-essential/marginal functions of a disabled person’s job to other employees.
It may seem unfair that co-workers are asked to shoulder a slightly heavier workload to accommodate a disabled person. However, in Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 290 (7th Cir. 2015), a federal appeals courts explained “[i]f a minor adjustment in the work duties of a couple of other employees would have enabled the plaintiff despite her disability to perform the essential duties of her job…, the [employer’s] refusal to consider making such an adjustment was unlawful.” In other words, agencies cannot avoid reallocating duties to other employees based on fairness considerations alone.
The rule outlined in Stern has its limitations. There, the Court used the phrase “minor adjustment” when it discussed the shifting of duties to other employees.
In its primer for small businesses, the EEOC also provides the example of a secretary who, relatively infrequently, is required to lift and move heavy boxes. If the secretary suffers from a back condition, then the employer must shift the marginal function of moving boxes to other employees if and when such a need to do arises.
The clear implication from this example is that an agency is not expected to overwhelm a disabled employee’s co-workers with a tremendous amount of extra work – only a minor amount of additional duties.
Another limitation on an agency’s duty to reallocate non-essential duties to a disabled employee’s co-workers can be found in the EEOC’s list of factors to consider in job restructuring. Recall that one of the factors employers must consider in determining what the essential functions are for purposes of restructuring is the number and availability of other employees to whom that extra work can be assigned.
Accordingly, the more employees an agency has to whom it can distribute various non-essential functions of a disabled person’s job, the less likely such reallocation of duties would be considered unreasonable as something more than a “minor adjustment.”
As seen through this series of articles, disability discrimination – and especially the failure to reasonably accommodate – is a complex area of law.
Job restructuring is only one of many different types of reasonable accommodations available to employers. It is clear that the particular form of job restructuring undertaken will vary significantly from case to case, based on the unique facts and circumstances of the employee’s impairment – whether physical or mental – as well as the employee’s position description, his or her actual job duties, the employee’s skills and expertise, and the number of other employees available within the agency who can perform the non-essential/marginal functions of the job being restructured.
Ultimately, while an agency’s chosen reasonable accommodation might be declared insufficient by a finder of fact, the agency’s good faith attempts to accommodate should at least help prevent monetary liability for compensatory damages.
Jeffrey J. Lorek currently serves as the Deputy Chief, Labor Relations Branch, at the U.S. Air Force Legal Operations Agency in the Washington, D.C. area. He has published a number of articles on various labor and employment law topics. He holds a commission at the rank of Major in the Air Force. Major Lorek has a B.S. in Finance from The Pennsylvania State University, a J.D. from The Cleveland-Marshall College of Law, Cleveland State University, and an LL.M. in labor law from The George Washington University Law School. The views expressed in this article are solely those of the author, and do not represent the views of the Department of Defense, the U.S. Air Force, or the Judge Advocate General’s Corps.