Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
Beyond Essential Functions: The Role of Job Reassignments in Accommodating Employee Disabilities
Imagine for a moment that you are the HR Manager for a company with many physically demanding jobs. One of your employees submits a doctor’s note prohibiting her from lifting anything over 25 pounds. Mindful of your obligations under the Americans with Disabilities Act (ADA), you check to see if the lifting restriction will prevent the employee from doing her job. Unfortunately, after checking the employee’s job description and talking with her supervisors, you conclude that lifting is a key part of the employee’s job (in legal terms, an “essential function”), and there is nothing practical that can be done (in legal terms, no “reasonable accommodation”) to allow her to perform her job. When you tell the employee that she cannot return to her job, she asks if there are other positions available within the company that she can be transferred to. You say you’ll look into it, but when you start asking around, things get complicated. There are a handful of open positions in other departments, but the job requirements are different and some of the positions already have applicants who seem better qualified. None of the positions have exactly the same pay as the employee’s warehouse position, so she would either be getting a raise or a demotion. What should you do?
Reassignment Rules of Thumb
The ADA defines “reasonable accommodations” to include“reassignment to a vacant position.” (42 U.S.C. § 12111(9)(B)). Since a reassignment is a unique type of accommodation, an employer’s obligation to reassign an employee has some limitations.
- The reassigned position must already exist and must be vacant. An employer is not required to “bump” an existing employee out of a position to accommodate the disabled employee, and is not required to create a new position or convert a temporary light duty assignment into a permanent position.
- The employer is required to consider any jobs that it reasonably anticipates will become vacant in the “fairly immediate future.”
- The employee must be qualified for the vacant position. The employer must provide a reasonable accommodation in the vacant position if necessary, but is not required to train an employee if he or she is not qualified for the vacant position.
- Reassignment is only available to current employees, not new candidates for a position.
- An employee is not required to identify specific vacant jobs for which he or she is qualified. Because the employer is in a better position to determine viable reassignment opportunities, courts typically hold the employer responsible for identifying specific vacant positions.
- While some courts have held that the employee must actually request reassignment, others have held that the obligation is triggered if the employee indicates a desire to remain with the company.
- Reassignments should only be considered “when accommodation within the individual’s current position would pose an undue hardship . . . [and] may not be used to limit, segregate, or otherwise discriminate against employees with disabilities . . . .” (29 C.F.R. pt. 1630, app. §1630.2(o)). Several courts have adopted this reasoning, including the Third Circuit, which has described reassignment as an accommodation of “last resort.”
- An employer is not required to promote an employee as an accommodation.
- Employers should look for reassignments that are equivalent or close to equivalent to the employee’s prior position. Reassignments that would constitute demotions should only be considered if no equivalent positions are available.
- Remember to document the results of your search for vacant positions. It can be difficult to reconstruct this information later on.
What if the proposed reassignment would violate an employer policy, such as a seniority system?
Collectively bargained rules prohibiting reassignment are generally given priority if they are consistently enforced, but policies imposed solely by the employer may not be. The United States Supreme Court has stated that it is ordinarily unreasonable for an employer to be required to reassign an employee in violation of a seniority policy, but that a transfer in violation of a seniority system could still be a reasonable accommodation under certain circumstances, such as when the employer retains the right to make exceptions and frequently does so.
What if the disabled employee is qualified for a vacant position, but another applicant is more qualified?
Federal courts are split on this issue. The Seventh Circuit, Tenth Circuit, and D.C. Circuit have held that reassignments are presumed to be reasonable accommodations, and that simply allowing a disabled employee to compete for an opening like any other employee is not a true accommodation. The Eighth Circuit has held that the ADA does not require employers to reassign qualified disabled employees if the reassignment would violate an employer policy to hire the most qualified candidate. District Courts within the Third Circuit are split. In a 2011 case, the Middle District of Pennsylvania ruled in favor of the employer because it was undisputed other candidates for a vacant position were more qualified than the disabled employee, and the employer was able to show that one of these candidates would have normally been entitled to the position under established hiring practices. However, in 2013, the Eastern District of Pennsylvania adopted the Seventh Circuit’s presumption that reassignment is a reasonable accommodation, and required the employer to prove that the reassignment would cause undue hardship. Since there was evidence that the disabled employee and other applicants were equally qualified, the Eastern District rejected the employer’s hardship argument.