Are Shortened Work Weeks a Required ADA Accommodation?

By Rob Binkley

Can an employee require an employer to provide him with a shortened work week as a required ADA accommodation? The answer in one recent case was “No.” 

In Johnson v. Ford Motor Company, U.S.D.C. Michigan 1/2/2019, Mr. Johnson sued Ford Motor Company under the Americans with Disabilities Act and its Michigan equivalent statute because Ford refused to accommodate his “eight hour maximum work per shift/forty hours maximum work per week” medical restriction after he sought to return to work as a process coach (production superviser) and refused to engage with him in an interactive process during a nine month period. Johnson had had a leave of absence for back pain and high blood pressure and his doctor returned him to “light duty work” for four hours per day for four weeks. Ford accommodated Johnson’s restrictions at that time. Johnson a few months later initiated a second leave of absence for an aggravation of his back pain and hypertension and also depression.   

During this second leave he transitioned to inactive or off-roll status pursuant to Ford’s policy.  Johnson for nine months requested reinstatement once his doctor released him to return to work with an eight hour per day/forty hour per week work restriction.  However, Ford declined his request because the other process coaches were working ten to fourteen hour shifts and production supervisor positions were not available for only eight-hour shifts. Ford eventually did reinstate Johnson with his requested work restrictions anticipating that workloads would decrease in upcoming months, but Johnson soon thereafter initiated a third medical leave period and did not return to work because he was unable to work in any capacity because of his back pain.

Johnson alleged that an abundance of work for process coaches was available for the production supervisors to perform and therefore, Ford could have easily provided him a position limited to eight hour shifts.  Agreeing that plenty of work existed, Ford contented that its policy and practice was to manage periods of increased workload by mandating process coaches to work longer shifts and to transfer underused process coaches from other facilities to perform the work. In other words, underutilized or shut down Ford facilities would loan process coaches to those facilities with excessive work demands. Further, Ford demonstrated that its longstanding, well-established policy was that local management could mandate longer work hours, but not increase the number of process coaches for budgetary reasons.

Johnson did not submit any evidence that Ford had an open process position into which he could have been placed during the nine month period in question. Johnson submitted declarations from other employees that Johnson’s Ford plant was very busy during the time period in question.  However, Johnson was not able to rebut Ford’s evidence that Ford staffed the particular plant with process coaches “borrowed” from other plants who were on layoff and who were being paid by their home plants and Ford did not have an open or vacant process coach position at Johnson’s plant during the time in question. Johnson acknowledged that the work was being performed by process coaches from other plants even though he believed that there were “open” positions during the nine month period.  Further, when the particular Ford plant did have an opening for a production supervisor, Ford offered the position to Johnson moving Johnson from inactive to active status. Noting that ADA case law was clear that Ford was not obligated to create a new job or position or displace an existing employee to accommodate a disabled individual, the court concluded that Johnson’s claim failed because he did not establish that a process position was open during the nine month period in question.

Johnson also complained that his supervisor failed to engage him in an interactive process by telling him merely that there was no work available to Johnson rather than explaining to him that no position was open. His supervisor did not have the authority to hire or fire anyone and further could not have brought Johnson back to work without approval of human resources and upper management. Johnson was not able to show that Ford had in the past allowed plant management to exceed manpower allotments to hire other production supervisors. Thus, the court rejected Johnson’s “animus” contention finding that Ford was not required to engage in an interactive process when an employee sought a position that was not open.

The court also placed significant emphasis on the fact that Johnson was not able to show that he could have performed the essential functions of the process coach during the nine month period in question. Johnson argued that certain parts of his job responsibilities could have been shifted to other process coaches thereby permitting him to work an eight hour shift each day rather than the ten to fourteen hour shifts worked by other process coaches during that time. The court noted that an employee could make out a prime facie case of failure to accommodate under the ADA by specifying the duties that others could perform in his stead by establishing that those duties shifted. However, Johnson did not do so here. The job description for the process coach position required the “ability to work any shift as well as rotating shifts and weekends.” Production schedules required regular overtime with shifts well in excess of eight hours during the relevant period. The parties agreed that the last two hours of the process coach’s job was particularly tedious and important. Johnson wanted to shift this tedious and important work to other production supervisors for each and every one of his shifts. 

The court noted that although a reasonable accommodation may include job restructuring, part time or modified work scheduled, or reassignment to a vacation position, removing an essential function from the position is per se unreasonable. Further, the ADA does not require employers to shift an essential job function onto others. Here, the court concluded that Johnson was asking Ford to shift the most tedious and important of the position’s responsibilities to others, the court concluded that no reasonable juror would find that the end of the shift closing duties were “marginal” functions of the process coach/position supervisor position that could “easily” have been shifted to Johnson’s fellow process coaches. The job description and the actual day to day experience of the process coach position demonstrated the essential function nature of the end of the shift activities. 

Thus, the court concluded that Johnson impermissibly wanted to have other process coaches perform essential functions of his job. This case emphasizes the importance of having clearly thought-out job descriptions carefully incorporating the essential functions of the position and making sure that management across the board consistently follows policies and procedures, as well as reminding employers that the ADA neither requires an employer to shift essential functions of a position nor create a position as an accommodation nor engage in an interactive process when a job position has no opening.