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► Is Unpaid Leave An Appropriate ADA Accommodation?

When an employee comes to you with a proposed job modification to accommodate a health condition, consider the requested accommodation. But remember: You can offer a different accommodation that addresses the employee’s health condition but doesn’t pose the operational challenges the employee’s requested accommodation would cause. That’s the route UPS took with one of its delivery drivers.

Delivery driver’s pain

As a package delivery driver for UPS, Jay Hannah worked a route that required him to drive a truck that had the capacity to carry 600 cubic feet of packages.

After the onset of pain in his lower back, hip, and buttocks, Hannah was diagnosed with hip bursitis. The delivery truck’s stiff suspension aggravated his condition. UPS first tried to address the problem by providing him with a better-padded and more supportive driver’s seat, but that only provided momentary relief.

Hannah missed some work, and his doctor diagnosed him with sacroiliitis. The doctor recommended he avoid prolonged sitting for a while and concluded he was temporarily disabled.

At that point, Hannah asked UPS to accommodate his health condition. He proposed that the company provide him with a cargo van to service his delivery route because it had a softer suspension, which would give him “an easier ride.” As an alternative, he asked that he be temporarily assigned to an “inside job” until his condition improved and he could resume his route.

Not the accommodation he requested

Hannah’s request to drive the smaller cargo van couldn’t be accommodated. The cargo capacity of the van was 40% to 50% less than his delivery truck, which meant that either UPS would have to assign part of his route to another driver or he would need to make multiple trips to complete his route. Incidentally, provisions of UPS’s union contract prevented the partial assignment of the route and prohibited multiple trips to complete the route.

Temporary assignment to an inside job also wasn’t an option because there were no inside work vacancies for which Hannah was qualified. However, UPS told him it would consider him for any future openings that became available for which he was qualified.

After determining neither of the accommodations Hannah requested was reasonable and feasible, UPS came up with a solution—one he hadn’t requested. It offered to allow him to take an indefinite leave without pay until he healed and was able to return to work. After several months, he returned from his unpaid leave and resumed working on his route driving the assigned delivery truck.

Soon after returning to work, Hannah sued UPS, claiming it violated the Americans with Disabilities Act (ADA) when it didn’t provide him with either of the accommodations he requested and instead made him take unpaid leave.

Reasonable accommodations under the ADA

Employers are required to consider and offer reasonable accommodations for disabled employees that enable them to perform their essential job functions, so long as the accommodations don’t impose an undue hardship on the employers’ operations. Under the ADA, the employer has the “ultimate discretion” to choose among potential accommodations. In addition to job restructuring and schedule modification, the ADA specifically recognizes unpaid leave as a potential accommodation.

When Hannah’s case reached a federal appeals court, not only did UPS establish the fact that the 600-cubic-foot truck was necessary to service his delivery route, but he also never disputed the fact there were no inside job vacancies for which he was qualified. Additionally, UPS demonstrated that the two accommodations he requested would violate its union contract provisions.

Under the circumstances, the court ruled the indefinite, unpaid leave was appropriate and lawful under the ADA. Hannah v. United Parcel Service, Inc., No. 21-1647 (4th Cir., 7/10/23).

Do your homework

More often than not, employees who ask for a job modification because of a health condition will request a particular accommodation. While you should consider their requests, you do have the right to offer a different accommodation that has less impact on your business. Be prepared to explain why a requested accommodation is unworkable and why the alternative accommodation is reasonable and makes more sense.

By Charlie Plumb. Mr. Plumb is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft.


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