12.7 ADA—REASONABLE ACCOMMODATION
To establish the defendant's duty to provide a reasonable accommodation, the plaintiff must prove, by a preponderance of the evidence, both of the following elements:
[1. the plaintiff requested of the defendant an accommodation due to a disability.]
[1. the defendant knew, or had reason to know that:
(a) the plaintiff has a disability;
(b) the plaintiff was experiencing workplace problems because of the disability; and
(c) the disability prevented the plaintiff from requesting a reasonable accommodation.]
2. the defendant could have made a reasonable accommodation that would have enabled the plaintiff to [apply or qualify for] [perform the essential functions of] the job.
Under the ADA, [an] accommodation[s] by the defendant may include, but [is] [are] not limited to:
(1) [modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position][;]
(2) [making existing facilities used by employees readily accessible to and usable by individuals with disabilities][;]
(3) [job restructuring][;]
(4) [part-time or modified work schedule][;]
(5) [reassignment to a vacant position][;]
(6) [acquisition or modifications of examinations, training materials or policies][;]
(7) [provision of qualified readers and interpreters][;] [or]
(8) [other similar accommodations for individuals with plaintiff's disabilities].
It is for you to determine whether the accommodation[s] requested by the plaintiff [is] [are] reasonable.
A reasonable accommodation does not include changing or eliminating any essential function of employment, shifting any of the essential functions of the subject employment to others, or creating a new position for the disabled employee.
[If the plaintiff rejects a reasonable accommodation that could enable the plaintiff to perform the essential functions of the position, the plaintiff cannot be considered qualified for the position.]
[An accommodation is generally not reasonable when it consists of a request to be reassigned to another job position that would be in violation of an employer’s seniority system. This general rule, however, does not apply if the plaintiff has proved, by a preponderance of the evidence, special circumstances such as [[the seniority system provides for exceptions] [the employer has exercised changes to the seniority system] [state other special circumstance]].]
The bracketed language as to special circumstances at the end of the instruction has been added as a result of language in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002).
The factors listed in this instruction are derived from 42 U.S.C. § 12111(9) and 29 C.F.R. §§ 1630.2(o)(1)(i), (3), 1630.9(d). See also Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1112-14 (9th Cir.2000) (en banc) (holding that interactive process is mandatory, not permissive, duty of employer and employer has duty to initiate interactive process in some circumstances), vacated on other grounds, 535 U.S. 391 (2002).
In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Supreme Court dealt with the question of how a requested accommodation (reassignment from the position of cargo handler to that of mailroom worker) should be reconciled when the request conflicts with a seniority system. The Supreme Court recognized that while ordinarily a proposed accommodation that would otherwise be reasonable becomes unreasonable when in conflict with a seniority system, an employee should have an opportunity to establish any special circumstances that may constitute an exception to the general rule. See also Willis v. Pacific Maritime Ass’n., 236 F.3d 1160 (9th Cir.2001), amended by 244 F.3d 675, 679 (9th Cir.2001) (holding that employee’s proposed accommodation was per se unreasonable because it directly conflicted with bona fide senority system established under collective bargaining agreement).
In PGA Tour v. Martin, 532 U.S. 661 (2001), the Supreme Court ruled that petitioner’s use of a golf cart that is normally prohibited during professional tour events is a reasonable accommodation for a professional golfer, disabled by a degenerative circulatory disorder impairing the ability to walk a golf course in a golf tournament. The Supreme Court found that such an accommodation would not "fundamentally alter" a tournament. Id. at 690.
Unpaid medical leave may be a reasonable accommodation. "Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer." Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.1999). However, "recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all)." Dark v. Curry Cnty., 451 F.3d 1078, 1090 (9th Cir.2006). In those jobs for which performance requires attendance at the job, "irregular attendance compromises essential job functions." Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233, 1237-40 (9th Cir.2012) (holding that accommodation that would allow neo-natal intensive care unit nurse to miss work whenever she felt she needed to and for so long as she felt she needed was unreasonable).
The Ninth Circuit, in Josephs v. Pacific Bell, 443 F.3d 1050, 1060 (9th Cir.2006), joined several other circuits in expressly recognizing discriminatory failure to reinstate as a separately actionable claim under the ADA.
The ADA does not impose a duty to create a new position to accommodate a disabled employee. Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155-56 (9th Cir.1999)