In Austgen v. Allied Barton Security Services, LLC, No. 19-20613, 2020 U.S. App. LEXIS 20085 (5th Cir. 6/26/2020), a security officer, working for the Port of Houston, encountered back pain in inspecting vehicles. The pain was chronic and had been aggravated by climbing around vehicles. His employer told him to stay home on unpaid leave for a few weeks until some alternative could be found. Some weeks later, he was offered and accepted a supervisory position that was better for his back. Austgen requested transfer to a paid position, but was denied.
The Fifth Circuit found the unpaid time off was a reasonable accommodation. The ADA, noted the court, entitles a worker to a reasonable accommodation, not necessarily to the employee’s preferred accommodation. The plaintiff also accused the employer of not engaging in the interactive process to arrive at a reasonable accommodation. The court dismissed that claim with little discussion. It simply found the employer did offer an accommodation. Failing to engage in the interactive process only matters when the interactive process fails. See the decision here.
The court has a fair point. The interactive process is designed to arrive at an accommodation that meets the needs of the person with a disability. If the employer offered an accommodation, even if with little discussion, that meets the medical needs, then the employer has satisfied the requirement.
from Texas Bar Today https://ift.tt/39mVLsy
via Abogado Aly Website
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