Reassigning Disabled Employees

State and federal courts remain split over whether the Americans with Disabilities Act (ADA) requires employees to offer disabled workers light duty or alternative jobs to satisfy their employers) ADA duty of "reasonable accommodation." One issue that has arisen: Are ADA remedies limited to accommodating disabled workers in the jobs for which the employees were hired? Companies sometimes seek to limit job reassigning because of its disruption on job placement managing.

Three federal circuit courts of appeal-the Sixth Circuit (Ohio, Tennessee, Michigan, Kentucky), Seventh Circuit (Illinois, Wisconsin, Indiana) and Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)-have clarified the parameters of employer obligations. Here is a summary of the rulings:

A) Job reassignment to vacant positions is accepted as a mandated option under the ADA (i.e. it needs to be considered). In other words,

B) A disabled worker is eligible for ADA protection if he can perform other vacant jobs at the company, not just the one he had been doing;

C) As to the limits on this reassignment duty, the Tenth Circuit court adopted an eight-step checklist for evaluating claims for reassignment:

1) Finding an ADA-reasonable accommodation is intended to be a cooperative, interactive process, with both the employee and employer trying to find the best possible fit with each other's needs;

2) Reassignment is limited to existing jobs within the company;

3) The existing job must be vacant. "‘Vacant" means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time." EEOC interpretations make it clear that there is no duty to bump an employee to open a job for a disabled employee, even if the bumped employee can move to another job with no detriment.

4) An employer need not violate other important fundamental policies underlying legitimate business interests. These policies include seniority systems and other entrenched workplace practices that are related to business efficiency. It does not include policies, such as "no reassignment" policies, that have no business necessity justification and serve only to limit an employee's right under the ADA.

5) Reassignment does not require promotion.

6) Employers may choose the reassignment, as long as it's consistent with the above parameters. If the disabled individual rejects that reassignment, the employer is not obligated to offer other reassignments. An employer must attempt to use reasonable accommodation to keep the employee in his existing job, or offer a reassignment to another vacant job, which that person would be qualified to perform with or without a reasonable accommodation. Once the employer has offered such a reassignment, its "reasonable accommodation" ADA duty had been met.

7) An employer only needs to offer a reassignment that the employee is qualified for, with or without reasonable accommodation.

8) Reassignment need not be offered if it would create an "undue hardship" on the employer. Undue hardship means an action requiring significant difficulty or expense in light of various factors including the nature and cost of the accommodation, the number of persons employed by the company, the financial resources of the company and the impact of the accommodation upon the operation of the company.

The Sixth Circuit (Ohio) Appeals court basically agreed with the Tenth Circuit's ruling and added:

9) When disabled employees are not qualified for positions to which they seek reassignment, an employer would not be required under the ADA to reassign that employee to those positions. Where all of the positions at issue required similar, if not identical, physical skills as employee's current position (of automotive mechanic), then the employee was deemed not otherwise qualified to be an automotive mechanic; and

10) The ADA does not require an employer to reassign an employee with a disability to a position if such a reassignment would violate another employee's rights under a collective bargaining agreement.

11) The reasonable accommodation duty of the ADA does not require an employer to reassign an employee with disabilities to a vacant position if other candidates are better qualified. Seventh Circuit Chief Judge Richard Posner wrote for a unanimous three-judge panel that, "If the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory. That is not the same thing as requiring the employer to give (a worker) the job even if another worker would be twice as good."