Arnie Armstrong worked as a distribution stock clerk for Burdette-Tomlin Memorial Hospital in New Jersey for about 18 years. During his tenure, he was sometimes plagued by a preexisting neck and back condition.

At one point, the hospital created a new linen distribution clerk position. But it had difficulty filling this position, so it required distribution stock clerks to take turns performing the linen clerk functions. Armstrong was assigned to the job for six months--but reinjured his back after just two weeks.

Accommodation Request Denied

Armstrong's doctor then said he couldn't do excessive lifting, bending, pushing, or pulling. So Armstrong asked for his "old job" back, claiming he couldn't do the linen work because having to reach over and down the tall sides of the linen cart exacerbated his back condition.

The hospital denied Armstrong's request, determining that Armstrong could no longer perform as a distribution stock clerk because delivering linen was now one of the essential functions of the job. It told Armstrong he could transfer to another position, go on disability, or resign. No jobs were available, so Armstrong went on disability. After a year on leave, his employment was terminated.

Employee Sues

Armstrong sued for failure to provide a reasonable accommodation. The trial court instructed the jury that it couldn't rule in Armstrong's favor unless there was evidence that he had requested a particular accommodation. Because Armstrong had not, the jury returned a verdict for the hospital.

Interactive Process Requirements

Now a federal appeals court has sent Armstrong's case back for a new trial. Once an employer is on notice that a disabled employee needs an accommodation, the employer must engage in an interactive process to find an accommodation, the court said. If an employee could have been reasonably accommodated but for the employer's lack of good faith in finding a solution, the employee will prevail on a failure to accommodate claim. There is no extra requirement, said the court, that the employee must request a particular accommodation.

Here, the hospital was on notice that Armstrong was disabled and needed an accommodation, but there was sufficient evidence that it didn't meet its interactive process obligation. First, the hospital didn't appear genuinely interested in accommodating Armstrong. For example, even though it suggested he apply for other jobs, none were available, and a hospital administrator testified that if an employee couldn't do the linen aspect of the job, the employee couldn't work as a distribution stock clerk, period.

Second, several accommodations were possible. For example, Armstrong could have used a different linen cart that didn't require deep bending. Or, the other distribution stock clerks could have shared Armstrong's linen duties in exchange for him performing some of their stock clerk duties.

Tips to Use

Although this case didn't arise in California, it is a solid reminder of your obligation to engage in an interactive process to find an accommodation, and a California court would likely rule the same way. Here are some suggestions on what to do:

1. Explore alternatives. Once you are on notice that accommodation is needed, you must explore potential solutions, such as modifying the job so the employee can continue performing it or transferring the employee to another available position. You also have to consult with the employee to determine the effectiveness of any options.
   
   
2. Look for open positions. If an employee can't be reasonably accommodated in the existing position, thoroughly search for other positions that the employee is qualified to perform, with or without an accommodation.
   
   
3. Document your efforts. If no accommodation is available and an employee claims you didn't meet your interactive process obligation, your documentation could be key to convincing a jury that you made a good-faith effort to find an accommodation.
   
   

Armstrong v. Burdette Tomlin Memorial Hospital, U.S.C.A. 3rd Cir. No. 03-3553, 2006

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