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Violating Collective Bargaining Agreement Provisions May Not Be A “Reasonable Disability Accommodation”

In the case of Dove v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-4836, a court of claims magistrate recommended judgment against an employee who claimed disability discrimination against an employer under both the Americans with Disabilities Act (“ADA”) and R.C. Chapter 4112 because the employer denied the requested transfer arguing that the transfer violated the collective bargaining agreement and, therefore, was not a reasonable disability accommodation. Specifically, after going on disability leave for major depression and acute stress disorder, the employee told the employer that — because of the employee’s disabling conditions — the employee could not do the employee’s job in the same workplace as the supervisor — who allegedly assaulted and battered the employee — but the employee could return to work if either the employee or supervisor was transferred to another workplace.

In this case, the employee argued that the employer discriminated against the employee by refusing the requested transfer. In response, the employer argued that the requested transfer was not a reasonable accommodation as the transfer violated applicable collective bargaining agreement provisions. The magistrate agreed with the employer.

In support of the magistrate’s recommendation, the magistrate explained that:

“A ‘reasonable accommodation’ under the ADA may include ‘reassignment to a vacant position.’” “However, the ADA does not require an employer to ‘waive legitimate, non-discriminatory employment policies[,] displace other employees’ rights to be considered in order to accommodate the disabled individual,’ or ‘create new jobs . . . in order to accommodate a disabled individual.’” Similarly, “there is no requirement that an employer violate a collective bargaining agreement * * * in order to return a disabled employee to work.” More particularly, “the ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees.”

2022-Ohio-4836 at ¶ 58 (omitting the internal citations).

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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