The U.S. Equal Employment Opportunity Commission (EEOC) has referred to the reassignment or transfer of an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA) as a last resort. Reassignment may be an option to consider if the only other option is termination, especially if the employee suggests it or is open to the option.
Employers must first try to provide reasonable accommodations to employees in their current positions. However, reassignment may be an option if reasonable accommodations do not allow employees to perform the essential functions of their jobs or if reasonable accommodations create an undue burden on the employer. All too often, employers fail to consider reassignment and move directly to termination if it would be an undue hardship to keep a position open while an employee is on a medical leave of absence.
Reassignment May Avoid Employer Liability
Transfer also may help employers avoid the liability that might occur if they terminate the employee. Failing to provide reasonable accommodations to an employee in their current position, even when doing so is feasible, can lead to employer liability. Likewise, terminating an employee while on leave when a vacant position for which the employee was qualified could have been held open for them can lead to liability for the employer.
Nonetheless, there currently is a split among the circuit courts on whether an employer must give a disabled employee the vacant position for which they are qualified or make the employee compete for the position with others. Since the ADA limits what an employer can tell other employees about an employee’s accommodation, explaining to other employees why the disabled individual was selected for the position can be challenging.
Examining the Scope of Reassignment
An employer should look company-wide for potential reassignments for the disabled employee unless doing so would constitute an undue hardship. However, the employer should first ask the employee whether they would be willing to relocate. For instance, if the employee is willing to relocate, but only to certain locations. In that case, the employer should get that response in writing and limit the search for reassignment accordingly.
Employers should keep in mind that they are not required to create a job for a disabled employee, remove another employee from their current position, or promote another employee to create an appropriate vacancy. Transfers violating a collective bargaining agreement’s (CBA’s) seniority system are also presumptively unreasonable. However, if the employer has commonly made past exceptions to the CBA’s seniority system, then the transfer may be reasonable.
Reassignment to a lower-level position also may be an option if no equivalent position is feasible.
Employers also should limit the reassignment search to a “reasonable” time. A search of a few weeks or months could be reasonable, but a search of six months, according to the EEOC, is unreasonable. If the employer can identify no appropriate job reassignment within a reasonable timeframe, the employer can terminate the employee.
Most importantly, while identifying reasonable accommodations and potential options for reassignment, employers should document every aspect of the process thoroughly. For instance, employers should document all accommodations and positions considered, the employee’s response to all options, and why the options would or would not be reasonable and effective. Assigning an HR professional to go through all potential options with the employee can make this process go more smoothly and result in more solutions that support employee retention.
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