IBM Planning Reassignment of Employees, 10,000 Jobs to …

ExampleG: In the previous example, it wouldalso violate the ADA for the employer to offer Jaime the position without thebenefit of health insurance for his dependents. The employer may not reducethe level of health insurance benefits it offers Jaime because his wife has adisability; nor may it subject Jaime to different terms or conditions ofinsurance.

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"Vacant" means that the position is available when the employee asksfor reasonable accommodation, or that the employer knows that it willbecome available within a reasonable amount of time. A "reasonableamount of time" should be determined on a case-by-case basisconsidering relevant facts, such as whether the employer, based onexperience, can anticipate that an appropriate position will becomevacant within a short period of time. A position is considered vacanteven if an employer has posted a notice or announcement seekingapplications for that position. The employer does not have to bump anemployee from a job in order to create a vacancy; nor does it have tocreate a new position.

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Example C: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that another employee resigned and that that position will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by the employee with a disability. If the employee is qualified for that position, the employer must offer it to him.

See 42 U.S.C. § 12112(b)(4). Section 501 of the Rehabilitation Act provides the same protections for federal government employees and applicants.
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An employer does not have to provide a reasonable accommodation thatwould cause an "undue hardship" to the employer. Generalizedconclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualizedassessment of current circumstances that show that a specificreasonable accommodation would cause significant difficulty orexpense. A determination of undue hardship should be based onseveral factors, including:

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Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from working full-time to part- time as a reasonable accommodation because of his disability. The store assigns two clerks per shift, and if the first clerk's hours are reduced, the second clerk's workload will increase significantly beyond his ability to handle his responsibilities. The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. Thus, the employer can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce the employee's hours. The employer, however, should explore whether any other reasonable accommodation will assist the store clerk without causing undue hardship.

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Example A: A salesperson took five months of leave as a reasonable accommodation. The company compares the sales records of all salespeople over a one-year period, and any employee whose sales fall more than 25% below the median sales performance of all employees is automatically terminated. The employer terminates the salesperson because she had fallen below the required performance standard. The company did not consider that the reason for her lower sales performance was her five-month leave of absence; nor did it assess her productivity during the period she did work (i.e., prorate her productivity).