Reasonable Accommodation: Injured Nurse's Aide Not Offered Clerical Job, Court OK's Discrimination Claim

Reasonable Accommodation: Injured Nurse's Aide Not Offered Clerical Job, Court OK's Discrimination Claim

Legal Eagle Eye Newsletter for the Nursing Profession

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Quick Summary: The Americans With Disabilities Act requires an employer to offer an employee who becomes disabled reassignment to a position that the employee can perform if one is vacant.

This is true when the employee’s disability cannot be reasonably accommodated in the employee’s current position.

The employer’s duty to make reasonable accommodation by offering an alternate vacant position that the employee can perform includes lower-paying positions.

An employer cannot arbitrarily bar a disabled employee from accommodation in a new position just because the employee’s prior rate of pay in the old position was more than the new position pays or is more than the employee’s ability would qualify the employee for in the new position.

Reasonable accommodation plays a crucial role in ensuring employment opportunities for people with disabilities. SUPREME COURT OF COLORADO, 1998.

A rehabilitation aide suffered a disabling knee injury and could no longer perform the essential functions of her job. She could no longer safely lift heavy patients.

She was in salary step nine in her rehabilitation aide position. A clerical position was open in medical records. She was qualified for the medical records position, and her lifting disability would not be a problem in medical records.

However, the hospital’s policy was that anyone transferring into any new position could enter the new position at no higher than salary step six. For this employee that was a $2.20 per hour pay cut.

In court the hospital claimed it offered her the clerical position and she turned it down because of the pay differential. If that was true, the hospital had done its duty of reasonable accommodation, and there was no basis for a lawsuit.

The employee claimed she was never offered the lower-paying position, but instead was terminated because she was no longer qualified for her rehabilitation aide position and because no other position was available for her at salary step nine.

The jury accepted the employee’s version of the story. The Supreme Court of Colorado agreed if that was what happened, it was a failure by the hospital to offer reasonable accommodation to the employee’s disability. Failure to offer reasonable accommodation is one recognized form of disability discrimination.

The court upheld the jury’s verdict of $282,000 for the employee against the hospital, for back pay, future lost earnings, interest, attorney’s fees, court costs and punitive damages.

The court did not fault the hospital for paying no more than step-six wages to anyone who transferred into the medical records position. The policy of paying higher-paid persons no more than step six in a new position was applied without regard to whether the person transferring was disabled.

The court did fault the hospital for not offering the lower-paying position to this disabled employee. That was an act of disability discrimination, for which she had the right to sue.

The Americans With Disabilities Act requires employers to offer reasonable accommodation to any employee who is a qualified individual with a disability or who may become qualified as a result of being offered reasonable accommodation.

Reassignment to an alternate position that the employee is able to perform after becoming disabled from the employee’s previous position, if a position is vacant, is required as reasonable accommodation.

The court in this case said the same thing other courts and the Equal Employment Opportunity Commission have said. It is not reasonable to have to keep a disabled employee in a job he or she cannot perform, or to promote an employee, or to create a new position just for a particular employee, or to reassign a disabled employee to an occupied position displacing an innocent person.

And a reassigned employee is not necessarily entitled to the same salary after reassignment, if the new position pays less or if the employee’s skill level in the new position is compatible with earning a lower salary than the employee’s skill level drew in the old position.

However, since the employer has no obligation to pay the employee the same salary in an alternate position offered as reasonable accommodation, the employer cannot refuse to offer a vacant position for which the employee is qualified that happens to pay a lower salary, the court said.

Assuming the lower-paying position already exists, is vacant and the newly-disabled employee has the qualifications, it is the employee’s choice whether to take the position with the pay cut, rather than becoming involuntarily unemployed. Hospital v. Fail, 969 P. 2d 667 (Colo., 1998).