Reassignment – Don’t Forget the ADA “Accommodation of Last Resort”

lighbulbWhen good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well:  reassignment of a disabled employee to a vacant position.  This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.

When is a position “vacant”?   According to the EEOC’s reasonable accommodation guidance, “vacant” means that the position is available when the employee asks for reasonable accommodation (even if it has already been advertised to others), or when the employer knows that it will become available within a reasonable amount of time.  A “reasonable amount of time” is determined on a case-by-case basis..

What does “qualified” mean?  To be qualified, the disabled employee (1) must have the necessary skills, education, experience, or other job-related requirements for the position and (2) be capable of performing the essential functions of the new position with or without a reasonable accommodation.  However, if the employer typically provides specialized or job-specific training to other employees who assume the position, the employer must provide that training to the disabled employee as well.

What are the employer’s reassignment obligations?  The employer has an affirmative duty to search for an open position for the disabled employee.  It is not sufficient to tell the employee, “If you know of a position, let’s talk.”  If the employee knows of an open position he can and should suggest it, but the primary burden remains on the employer.

The amount of time an employer should spend on the search will depend on such factors as the size of the employer’s workforce.  For a small employer, this may take as little as one day.  For a large employer, it can take several weeks to search for vacant positions in various offices, branches, departments, facilities, or geographic areas (yes, the employer has that obligation).  However, the extent to which an employer has to search for a vacant position may be limited by undue hardship to the employer.

The employer must assign the disabled employee to a vacant position for which the employee is qualified that is equivalent to the disabled employee’s current position in terms of pay, status, benefits, and other relevant factors.  If no vacant equivalent position exists, the employer must reassign the employee to a vacant lower level position that comes closest to the employee’s current position in pay, etc.

Does the disabled employee have to compete for the position?  The EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he gets the job – he does not have to be the best qualified candidate for the position.  Although a few courts have held to the contrary, a recent case that resulted in a consent decree between the EEOC and United Airlines arguably resolves this debate.  After protracted litigation, a win for the EEOC in the Seventh Circuit Court of Appeals, and a refusal by the U.S. Supreme Court to hear an appeal, United agreed to pay over $1 million because it required workers with disabilities to compete for vacant positions for which they were qualified.  Employers would be wise to follow the EEOC’s guidance on this issue and give the vacant position to the qualified disabled employee unless there is a valid undue hardship defense.

How do you know when you’re done?  According to the EEOC guidance, the employer will have fulfilled its ADA reassignment obligations when it has (1) completed its search, (2) identified whether there are any vacancies (including those that may become open in a reasonable amount of time), (3) informed the employee of the search results, and (4) either offered a vacant position to the employee or informed him that no appropriate position is vacant.

A few last points.  The employer does not have to bump another employee from her existing position or otherwise create a position for the disabled employee.  Generally, an employer does not have to provide reassignment to a specific position if doing so would violate a seniority system, but there can be exceptions.  And finally, the employer’s reassignment obligation does not include providing a promotion; the disabled employee would have to compete for any such higher vacant position.

Pings for Employers:

  • Remember that reassignment is the accommodation of last resort. During the interactive process, consult with the employee about what type of accommodation(s) he believes would enable him to perform the essential functions of his current position.
  • If no reasonable and effective accommodation is immediately apparent, check out the resources available at the Job Accommodation Network (askjan.org).
  • If you have to consider reassignment, discuss with the employee his preferences in terms of job type, location, and other factors. This will assist in the search for a vacant position.  For example if the employee flatly says he will not relocate, you can eliminate other geographic worksites from the search.
  • If you are unsure whether the employee is qualified for a specific vacant position, ask the employee and get more information as needed.
  • If there are multiple open positions for which the employee is qualified, consult with the employee as to his preference.
  • Keep good records of all communications with the employee to regarding potential accommodation for the employee’s current position and all communications relating to reassignment.

Matrix can help!

Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, assist in identifying reasonable accommodations, documenting the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

 

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