Two of the more difficult reasonable accommodation requests that employers see are requests to be excused from shift and/or job rotation requirements. Last week, the federal Eighth Circuit Court of Appeals held in Kallail v. Alliant Energy Corporate Services, Inc. that an employer’s shift rotation requirement was an essential job function that permitted the employer to deny an employee’s request to be excused from the requirement as a reasonable accommodation for her Type I diabetes. In Kallail, the plaintiff was responsible for monitoring the distribution of electricity, gas, and steam throughout the company’s service territory, scheduling and routing resources to respond to routine and emergency work, and handling outage and other emergency situations so as to restore service and maintain system integrity. To provide coverage 24 hours per day, seven days a week, the employer required the plaintiff and others in her position to work an irregular rotating schedule. The plaintiff, however, alleged that working the rotating schedule was causing her to experience erratic changes in blood pressure and blood sugar, which put her at a higher risk for diabetic complications and death.
Armed with a medical recommendation that she only be assigned to the day shift, the plaintiff sought a reasonable accommodation, which was denied. As an alternative accommodation, the company said it would consider reassignment “to another vacant position with a straight day shift for which she was qualified.” When informed of three available positions, the plaintiff rejected them because one required walking, which she was unable to do, one paid less than her current position, and one would have required her to relocate or to commute a significant distance to work. One month later, the plaintiff underwent leg surgery and was placed on FMLA leave. While on leave, she applied for another position that had a straight eight-hour day shift schedule and was two job grades higher than her current position. She was one of six applicants to receive an interview, but the company hired another candidate. Upon the expiration of her leave, the plaintiff returned to work in a temporary day shift assignment, but went back on – and remained on — leave when she and the company were unable to find a mutually agreeable position into which she could transfer.
Plaintiff then filed suit alleging that the company failed to provide her a reasonable accommodation for her disability. The district court concluded that the ability to work a rotating shift was an essential function of her job that did not need to be reasonably accommodated. On appeal, the Eighth Circuit agreed. Noting that the analysis was very fact specific, the Eighth Circuit found persuasive the fact that the job description included the rotating shift requirement, which it noted enhanced the workers’ ability to respond to emergency situations and spread out the undesirable night and weekend shifts among all of the workers. Choosing not to second guess the company’s business decisions, the court rejected each of the plaintiff’s factual contentions attempting to explain how her job could be performed without a rotating shift. The court then considered whether the company satisfied its reasonable accommodation obligations by offering to reassign the plaintiff to other positions. The court concluded that the company’s offer of reassignment to a Customer Operations Assistant II position met its reasonable accommodation obligation because the plaintiff failed to respond with evidence showing both that the position offered was inferior to her former job and that a comparable position for which the employee was qualified was open.
The Kallail decision underscores that employers seeking to justify rotating job schedules and other job shift requirements as essential job functions will be subject to factually intensive scrutiny. The Kallail court certainly found it helpful that the requirement was included in the job descriptions, but employers will have to do more to demonstrate that the shift or schedule requirement can’t be reasonably accommodated. Where employers frequently slip up is by permitting exceptions to the requirement for non-medical reasons. Here, there was no evidence presented that the employer strayed from the requirement.
A very similar analysis will also come into play when an employer attempts to justify a job rotation requirement as an essential function. The relatively few cases decided on this point illustrate potential pitfalls for employers trying to include the ability to rotate among jobs as an essential job function. Courts will focus on the written job descriptions, the collective bargaining agreement (if one is in place), and the actual practice of the employer. Uniform, consistent application of the policy is key to defining the ability to rotate as an essential job function. Allowing employees to swap tasks, allowing one department to exclude itself from the rotation system, or relying upon job requirements that aren’t truly necessary could lead to problems in demonstrating that a job rotation is an essential job function.