Terminating the Employment Relationship

to further accommodate an employee by placing him in another position since to do so would violate the seniority provisions of the collective bargaining agreement. 115 Thus, an employer is not required, as part of the reasonable accommodation obligation, to violate any collective bargaining agreement. Conversely, the legislative intent of the ADA instructs that the collective bargaining agreement is not controlling. 116 The United States Supreme Court ruled that while an accommodation is usually not reasonable if it violates a seniority provision in a collective bargaining agreement, an employee might be able to show “special circumstances” to set the seniority system aside. 117 Furthermore, even under the Rehabilitation Act, a policy is discriminatory if there is no direct connection between the particular policy applied and the consideration of business necessity and safe performance that the Act requires. 118 Hence, the employer should first consider reasonable accommodation rather than merely relying on its policies as a defense to discrimination under the ADA. For example, suppose a retail employer does not allow individuals working as cashiers to drink beverages at checkout stations. The retailer also limits cashiers to two 15-minute breaks during an eight-hour shift, in addition to a meal break. An individual with a psychiatric disability needs to drink beverages approximately once an hour in order to combat dry mouth, a side effect of his psychiatric medication. This individual requests a reasonable accommodation. In this example, the employer should consider either modifying its policy against drinking beverages at checkout stations or modifying its policy limiting cashiers to two 15-minute breaks each day plus a meal break, barring undue hardship. x. Training Proper training of employees to work with a disabled employee is a form of reasonable accommodation. An employee/plaintiff, who was handicapped with both mental retardation and emotional disability, was constructively discharged from employment. This resulted from taunting by co-workers and inappropriate discipline from a supervisor due to her handicap. The court held that the employer failed to accommodate the employee's handicap even though the employer tried to accommodate the plaintiff by requiring other employees to attend sensitivity training sessions. The court found the sessions to be untimely and that the employer took a “soft approach” to disciplining employees. 119 xi. Adjusting a Supervisory Method 120 Adjustment of a supervisory method or approach may also be a reasonable accommodation. For example, supervisors could modify the way they communicate assignments, instructions or training to a medium that is more effective for a particular individual with a disability (e.g., in writing, in conversations, or by electronic mail).

Adjusting the level of supervision or structure may enable an otherwise qualified individual with a disability to perform essential job functions.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 47