Employers Not Required to Reassign Handicappers
The Michigan Supreme Court recently decided that employers are not required to reassign a handicapped employee to a new and different job as an accommodation under the Michigan Handicapper's Civil Rights Act ("HCRA").
In Rourk v Oakwood Hospital, 1998 Mich LEXIS 1358, (June 17, 1998), a registered nurse ("RN") claimed that the hospital should have transferred her to a new job as an accommodation of her non-work related shoulder injury. Rourk sustained an injury in a car accident that left her unable to lift over five pounds, extend her left arm over her head, or work as an RN. Consequently, she was placed on a medical leave of absence. The hospital's medical leave policy allowed for a maximum duration of one year, and its practice was to grant extensions beyond a year only in exceptional circumstances -- i.e., where it appeared likely that an employee would be able to return to his or her job if a short extension was granted.
After approximately one year of leave, and despite having surgery on her arm, Rourk was admittedly still unable to perform her job as an RN. Realizing that her medical leave was about to expire and that she was still unable to work as an RN, Rourk had preliminary conversations with the hospital's human resource officials about the possibility of moving into a utilization review position. Rourk admitted that she was not then qualified for this job because she would have required at least three months of training, and that she needed additional surgery on her arm in the near future. She never applied for the position but instead requested a six month extension of her leave. The hospital granted her "request".
At the end of her six month extension, Rourk was still unable to work as an RN. Rourk then contacted the hospital and inquired about the availability of two different positions. Neither position was available, and she was not immediately qualified to perform either job. Because Rourk was still physically unable to work as an RN, the hospital terminated her employment after eighteen months of medical leave.
Rourk brought suit arguing that the hospital violated the law by failing to place her in another job that she could have performed within her lifting restrictions. The hospital argued that the HCRA does not impose such a requirement on employers.
The Supreme Court agreed with Oakwood's arguments (Dykema Gossett represented Oakwood Hospital). The Court noted that the language of HCRA is different from that of the Americans with Disabilities Act ("ADA"), which specifically requires an employer to consider reassignment of a qualified disabled employee to another vacant position as a reasonable accommodation. The HCRA does not contain such language. The Court also concluded that the existence of a handicap must be determined with reference to the job actually held or applied for by the HCRA claimant.
What this means for Michigan employers is that claimants cannot bring handicap discrimination claims under the HCRA alleging that the employer violated the law by failing to reassign them to different jobs. If such an employee believes he or she has suffered handicap discrimination but does not pursue the administrative prerequisites to filing a lawsuit under the ADA, he or she is out of luck under Michigan law. Employers must remember, however, that they are still obligated to consider reassigning a qualified disabled employee to a vacant position as a reasonable accommodation under the ADA, providing that such reassignment is not an undue hardship to the employer.
Employers should remember that reassignment as an accommodation is different from the situation in which an employee becomes disabled and applies for a different job. In this situation, the only relevant inquiry for the employer is whether the applicant is qualified and able to perform the job with or without reasonable accommodation. The employer must consider the handicapped applicant for the position along with all other applicants.