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James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Must Employers Accommodate Disabled Employees By Transferring Them To A Different Position?

Disability Discrimination is shown on the conceptual business photo

Having represented employment discrimination victims for more than two decades, our Lake County, Florida employment discrimination lawyers know that many employers refuse to accommodate disabled employees. The Americans with Disabilities Act (ADA) prohibits discrimination against employees on the basis of disability. The ADA also requires employers to make reasonable accommodations for employees with a disability. In fact, the ADA’s broad definition of disability includes failing to provide disabled employees with a reasonable accommodation. The ADA defines reasonable accommodation to include “reassignment to a vacant position.” In this article, our Leesburg, Florida employment discrimination attorneys explain how the decision by the U.S. Sixth Circuit Court of Appeals in Fisher v. Nissan North America, Inc., Case No. 18-5847 (6th Cir. Feb. 27, 2020) illustrates that when disabled employees request a transfer to a vacant position for which they are qualified, employers must transfer them as a reasonable accommodation for their disability.

Employee Claims Disability Discrimination

In that case, Michael Fisher (Fisher) brought an employment discrimination lawsuit against his former employer, Nissan North America, Inc. (Nissan), pursuant to the ADA. Fisher claims that Nissan violated the ADA by failing to transfer him to a vacant position as a reasonable accommodation for his disability.

In January 2003, Nissan hired Fisher as a production technician on its factory line. He primarily worked in the Fits rotation, attaching doors, hoods, and trunks to new vehicles. Approximately 12 years later, Fisher went on extended leave because of a severe kidney disease and, ultimately, a kidney transplant in August 2016. For months after the surgery, Fisher remained easily fatigued. The anti-rejection medicines caused serious side effects that Fisher described as “almost like having the flu every day.” By October 2016, Fisher’s leave was running out. Nissan’s human resources manager warned Fisher that if he could not return to work without restrictions, he could lose his job. When Fisher raised this situation with his doctor, she cleared him to return to work on October 17, 2016.

Employee Requests Transfer To Different Position

When Fisher returned to work, he was placed in what he hoped would be an easier position, building doors in the Closures rotation. However, Fisher found the work was “10 times harder” than Fits. Fisher requested extra breaks or to work half-time and was refused. When Fisher asked for transfer to a different position, his supervisor’s response was equivocal: “yes, maybe, you know, we’ll see.” Before a decision was reached on Fisher’s transfer request, the human resources manager informed Fisher that he had been granted extra leave.

In late November 2016, Fisher returned to work back at his old position in Fits. The work continued to be challenging. Fisher had not acclimated to his anti-rejection medicines, and his flu-like symptoms continued. He also needed time off for doctor’s appointments but had no leave time left. Fisher began to miss work more frequently—and to be disciplined for his absences. After a verbal warning and written warning in January 2017 for missing work, Fisher was issued on final written warning in February 2017 for leaving work early. According to Fisher, all of his absences from work were related to his kidney.

Employee Forced To Quit

After each warning was issued, Fisher met with supervisors and human resources officials to discuss his attendance. Fisher testified that he always described his kidney transplant and requested potential accommodations. For example, after being warned about missing work for a doctor’s appointment in December 2016, Fisher asked his supervisor “again” if there was an easier position, such as checking bolts or working in final fit. The supervisor responded, “I feel for you, but my hands are tied.”

When describing his final meeting with human resources officials on February 3, 2017, Fisher explained that he was pessimistic because he had “asked them before” for help. When he attempted to describe his illness and need for restrictions, according to Fisher, the human resources representative “went ballistic” and said that Fisher could not “just be going home for a stomachache.” At the end of the meeting, a human resources official told Fisher that he had “never seen anybody come back” from a final written warning. So, Fisher left the plant without informing his supervisors and did not return.

Transfer Is A Reasonable Accommodation

The trial court dismissed Fisher’s disability discrimination claim. On appeal, the Sixth Circuit reversed the trial court’s decision and reinstated Fisher’s disability discrimination claim. At the outset of its opinion, the Sixth Circuit pointed out that Fisher had requested transfer to a different position as a reasonable accommodation for his disability. More specifically, Fisher testified that he had a friend who was injured while working for Nissan and was placed in an inspection position checking bolts and hoods, and that he repeatedly requested a similar move. Fisher further testified that he was qualified to inspect vehicles and he could have been placed in an inspection position when he requested the transfer.

Because Fisher requested transfer to a vacant inspection position as an accommodation for his disability, Nissan was required by the ADA“to consider transferring” Fisher to that position. Nissan, the Sixth Circuit explained, did not. Instead, Nissan argued that because it had transferred Fisher to Closures and back to Fits before Fisher requested transfer to an inspection position, it reasonably accommodated Fisher’s disability and satisfied its obligations under the ADA. However, even if Nissan’s past transfers of Fisher constituted reasonable accommodations for purposes of the ADA, the appellate court explained, Nissan’s past accommodations did not extinguish its obligation to accommodate Fisher’s disability by transferring him to an inspection position when he requested the transfer. Thus, because Fisher had requested transfer to a vacant inspection position for which he was qualified and Nissan refused to transfer him to the position when he requested the transfer, the Sixth Circuit determined that a reasonable jury could find that Nissan discriminated against Fisher by failing to accommodate his disability in violation of the ADA.

Consult With Leesburg, FL Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Lake County, Florida employment discrimination attorneys have represented employment discrimination victims for more than twenty years. If you have experienced discrimination at work or have questions about your protection against discrimination under the federal employment laws, please contact our office for a free consultation with our Leesburg, Florida employment discrimination lawyers. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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