The Americans with Disabilities Act (ADA) was signed into law by George W.H. Bush 33 years ago this month – the same year our first child was born. Like most youngsters, the early years of the ADA’s existence found it growing in fits and starts. It was sent to the principal’s office (the Supreme Court in this case), more than any other kid in the class. Most of those times it was seen by SCOTUS as being “too big for its britches” and was cut down a bit.
The year it turned 18, however, the ADA got a makeover: George W. Bush signed into law the Americans with Disabilities Act Amendments Act (ADAAA). On January 1, 2009, it became a robust adult ADA, with an ability to have a greater impact now that certain Supreme Court decisions were overturned. It was bigger, better, faster . . . .
Some aspects of the law have remained unchanged though. For example, there is the requirement that an employer must make a “reasonable accommodation that is not an undue hardship” to enable a “qualified individual with a disability” to “perform the essential functions of their job.” All of those quoted words are legal terms of art with many, many court decisions analyzing them. Importantly, however, an employer is not required to accept any accommodation that an employee requests.
And this is where today’s story begins, as told by the Fourth Circuit in Hannah v. UPS, 2023 U.S. App. LEXIS 17322 (4th Cir. July 10, 2023). Jay Hannah had driven a big UPS delivery truck in Parkersburg, West Virginia since 2008 “when he began experiencing pain in his lower back, hip, and buttocks in December 2017.” He claimed it was a work related injury (see UPS v. Hannah, 2019 W. Va. LEXIS 184 (April 25, 2019)), but that matters not here. The problem was diagnosed as hip bursitis. It was a pain in the butt. And elsewhere.
The route Hannah drove was the result of his bid under the Teamsters Collective Bargaining Agreement (CBA) with UPS. But he wanted to use a different vehicle – a van with a softer seat and better suspension – to deal with the pain. One problem with that was the truck Hannah normally drove could hold 600 cubic feet of packages, but the van could hold only about one-half that much.
UPS determined that the request was not reasonable, as Hannah would need to spend more time driving more miles, or give up one-half of his route to another driver. Neither change would enable him to perform the essential functions of his job. And it would violate the CBA work rules.
Hannah alternatively suggested that UPS give him an “inside work” job until he could drive the bigger truck. This meant driving only within a 30 mile radius or something else on location. But there were no open positions available. And, such a move would have violated the seniority rules of the CBA.
UPS had a solution. It told Hannah he could take an indefinite unpaid leave of absence until he could return to the big truck job. An indefinite unpaid leave of absence is something the EEOC says can be a reasonable accommodation under the ADA in some circumstances.
Hannah did not think a leave of absence was a reasonable accommodation. Why? Because he didn’t want it and because the leave “prevented [him] from earning his wages.” Hannah accepted the unpaid leave of absence, but he was not pleased. After he returned to work – back to his big truck job – he filed an ADA lawsuit.
The district court granted summary judgment and the Fourth Circuit affirmed. “It is well settled,” said the court, “that the ‘ultimate discretion’ to choose among reasonable accommodations rests with the employer.” Hannah’s dissatisfaction with the accommodation provided by UPS did not make it “unreasonable.”
The leave here was temporary. UPS had reason to believe Hannah would return to his truck and route once he recovered. And that’s what happened. Hannah received treatment and returned when he was ready. A reasonable accommodation that enabled a qualified individual with a disability to perform the essential functions of the job. Et Voila!
The take-away here? An employer is required to engage in the interactive process and consider various accommodations that may or may not be reasonable and pick the one that works. It is not required to accept the accommodation requested by an employee. Special note: if UPS employees go on strike at the end of July as predicted by the reporting in the press of a breakdown in negotiations, a whole bunch of drivers may get an indefinite unpaid leave of absence.