Not literally in the sun. Only Superman could do that. Or maybe some of those X-Men. Well, you get the idea.
The lede, up to the word “sun.”
Yesterday, I read this federal court opinion about an employee who was hired to work outdoors during the day. Unfortunately, during the employee’s probationary period, he was diagnosed with lupus. Under doctor’s orders, he was forbidden thereafter from working in direct sunlight due the risk of melanoma. So, the probationary employee, who suffers from a disability under the Americans with Disabilities Act, engaged his employer in an interactive dialogue. He inquired about jobs inside and was told that all of those positions were filled. He also inquired about working the same job, but at night. However, there were no night shifts available, nor were there enough night calls to justify a full-time night position.
After the employee’s supervisors told him that there were no available opportunities, they told the probationary employee that he could work until the end of his probationary period, which he planned to do by wearing SPF 90, long-sleeved shirts (did I mention that this case comes from the Western District of Texas?), and a large-brimmed hat. However, prior to the end of his probationary period, the probationary employee resigned.
Then he filed an ADA lawsuit.
Now, the full lede.
The ADA protects qualified individuals with disabilities. While, the plaintiff here suffered from a disability (lupus), he was not a “qualified individual” under the ADA. That’s because he could not perform the essential functions of his job with or without a reasonable accommodation. To perform his job, he had to work in the sun. That was an essential job function. The ADA does not require an employer to reassign essential job functions to other employee to accommodate an employee with a disability.
Further, the employer does not have to create a new position to accommodate an employee with a disability. So, in this case, the employer did not have to create a nighttime position. Also, while a transfer to a vacant position for which the employee is qualified is a reasonable accommodation, there were no such positions available.
Moreover, in this particular case, the plaintiff’s repeated emphasis that he could not work in the sun in any capacity made discussing any other accommodation impossible. Additionally, once the plaintiff signed his resignation letter, the employer was absolved from further engaging in an interactive dialogue to address possible ADA accommodations.
Employer wins.