In its current term, the Court will consider the question of whether the Americans with Disabilities Act requires an employer to reassign a qualified disabled employee to a vacant, equivalent position as a reasonable accommodation, or that the employer merely permit the worker to apply and compete with other applicants for the position.  At issue is an Eighth Circuit decision in Huber v. Wal-Mart Stores, Inc. which held that "the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate."

In an en banc decision, the Ninth Circuit remands a case involving a United Parcel Service policy of excluding hearing-impaired applicants for “package-car driver” positions. UPS had excluded driver candidates if they could not pass the U.S. Dept. of Transportation hearing standard, even though the vehicles operated by the drivers were not covered by the DOT rules. In Oct. 2006, a three-member panel of the Court held that UPS did not prove that deaf delivery drivers would be unsafe. UPS argued that the hearing-impaired drivers were not “qualified individuals” because they could not meet the company’s requirement to pass the DOT hearing standard, and thus could not meet an essential function of the job, which was DOT certification to drive all commercial vehicles.

The full Court draws a distinction between essential functions and qualification standards. “Whereas ‘essential functions’ are basic ‘duties,’ [citation omitted]’qualification standards’ are ‘personal and professional attributes’ that may include ‘physical, medical [and] safety’ requirements,” the Court says. Since UPS linked hearing with safe driving, it bore the burden to prove that as part of its defense to use the hearing qualification standard, the Court holds, “The employees, however, bear the ultimate burden to show that they are qualified to perform the essential function of safely driving a package car.” Bates v. United Parcel Service

Injured employees working nonstandard hours—regularly working at least 12 hours per day or at least 60 per week—are considerably more likely to be fired, to quit, or to return to work at less than full-time capacity than injured workers with more conventional work schedules, according to new research from Ohio State University and lead study author Allard Dembe. For those working extended hours per week, injured employees were 70 percent more likely to quit and 81 percent more likely to be fired than their counterparts with conventional eight-hour per day/40 hours per week work schedules.

The researchers say that occupational rehabilitation professionals should routinely consider the employee’s work schedule as part of their evaluation, claiming that current rehabilitation efforts tend to emphasize the ability of the returning work to perform job tasks rather than when or how long the recovering employee will work each day.

The petition of United Parcel Service for a rehearing by the full Ninth Circuit was granted in a case involving a UPS policy of excluding hearing-impaired applicants for “package-car driver” positions. In Oct. 2006, a three-member panel of the Court held that UPS did not prove that deaf delivery drivers would be unsafe. UPS had excluded the driver candidates if they could not pass the U.S. Dept of Transportation hearing standard, but the panel pointed out that the vehicles operated by the drivers were not covered by the DOT rules. The opinion further pointed out that the company had not proved business necessity because the studies on which it relied were flawed, and did not show that deaf drivers were more unsafe than hearing drivers who had prior accidents and who were allowed by UPS to continue to drive. According to the rehearing grant, the panel’s opinion will not be cited as precedent, except to the extent adopted by the en banc court. Bates v. UPS; Panel Opinion filed 10/10/06.