Massachusetts Gen. L. Ch. 151B is the state statute that prohibits discrimination based on disability, and the interpretation of that statute sometimes differs from the federal Americans with Disabilities Act (ADA). One area where the two statutes diverge is an employer’s obligation to transfer an employee to a vacant position.
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The Equal Employment Opportunity Commission (EEOC) considers such a transfer to be a reasonable accommodation under the ADA, but that isn’t considered to be one of an employer’s obligations under Massachusetts law.
However, because federal law mandates that an employer consider transfer to a vacant position as an accommodation, Massachusetts employers have routinely felt obligated to do so. This recent decision from the U.S. 1st Circuit Court of Appeals—which covers Maine, Massachusetts, New Hampshire, and Rhode Island—should make it a little easier to decline to transfer an employee if her disability makes it impossible for her to perform the essential duties of her position.
Bad Ankles Lead to Disability
“Claudette” worked as a patrol officer for the Plymouth Police Department. Beginning in 2010, Claudette experienced two work-related ankle injuries within an 18-month period. Her injuries resulted in severe restrictions to her ability to perform the essential functions of a patrol officer, including patrolling by foot, responding to emergencies, aiding individuals in danger of physical harm, and apprehending criminal offenders.
Indeed, after her second ankle injury, Claudette was physically unable to work as a patrol officer. She received full pay while she wasn’t able to work at all, under the department’s injured-on-duty policy, and when she was able to return to work in a limited capacity, she received full pay for part-time shifts, as well as a key to the elevator and a special parking space.
In June 2013, Claudette had ankle surgery. While she was recovering from her surgery, another patrol officer, “Harry,” returned to work on light duty after an injury. As part of his light-duty assignment, he worked to help the department catch up on its obligation to compile data for the National Incident Based Reporting System (NIBRS). After the department eliminated the backlog of NIBRS records, Harry was reassigned to a station officer position until he was able to return to full duty.
Claudette was released to return to work in October 2013. She asked to be assigned to work on the NIBRS records, but the police chief informed her that the backlog had been eliminated and that the only vacant position within her restrictions was that of station officer. She returned to work in that capacity, but after a second ankle surgery in 2014, she was restricted to working only 4 hours per day, with limited bending.
Claudette was once again assigned to work as a station officer, but following a disciplinary proceeding, she eventually sued the department and the town of Plymouth in 2014, claiming that she had been denied a reasonable accommodation when it had refused to give her a job working on the NIBRS data log. The U.S. District Court for the District of Massachusetts found that she didn’t have enough evidence of a violation of the ADA to go to trial, and she appealed the dismissal to the 1st Circuit.
A Transfer May Be a Reasonable Accommodation, but There are Limits
The ADA (as well as Massachusetts state law) prohibits employers from discriminating against disabled employees who can perform their essential job functions with or without a reasonable accommodation. Failing to provide a reasonable accommodation constitutes disability discrimination unless an employer can demonstrate that providing the accommodation would pose an undue hardship.
So if there is no accommodation that would allow the employee to perform the essential functions of the position, is it ok to part ways with her? Not according to the 1st Circuit (or the many courts that have come to the same conclusion). Under federal law, when a disabled employee cannot perform the essential job functions of her position and requests a transfer to another position, an employer may have a duty to transfer the employee. However, the employee bears the burden of proving that a vacant position existed for which she was qualified.
Remember that the ADA doesn’t require an employer to create a new job for an employee if one doesn’t exist or to reinstate her to a job if the position has been eliminated. Claudette didn’t dispute that there was no accommodation that would allow her to be a patrol officer. However, she maintained that the ADA entitled her to a transfer to a position maintaining NIBRS data.
The town disagreed, pointing out that no such position existed, and the work that the other officer on light duty had been doing had been completed. The appeals court agreed with the town and noted that when an employee is challenging her employer’s denial of a requested transfer, it’s her burden to demonstrate that there was an actual position to which she could have transferred.
Although Claudette tried to show that there was an ongoing need for someone to work on the NIBRS data log, she was unsuccessful in persuading the court that there was a vacant data-entry position for which she was qualified.
At the time that she made her request for a transfer, there actually was a vacancy in NIBRS—for a records sergeant. But the duties of a records sergeant are far broader than the data-entry tasks that had been assigned to Harry as a temporary accommodation, and after his assignment ended, no one other than the records sergeant and a civilian clerk worked on the NIBRS data log.
The 1st Circuit ruled definitively that an employer isn’t required to transfer an employee to an alternate position that she is unqualified for or unable to perform with or without a reasonable accommodation. As a result, it upheld the district court’s ruling, granting judgment for the town. Audette v. Town of Plymouth et al. (1st Cir., 2017).
Takeaway
We have often said that the ADA and parallel Massachusetts law protecting employees from disability discrimination aren’t “one-size-fits-all” statutes. Every ADA/Ch. 151B request for an accommodation must be evaluated on a case-by-case basis because these statutes are “highly fact-dependent.”
Employers that want to stay out of hot water must look at each request for an accommodation on an individual basis. That said, if you can prove that the requested transfer was to a position that actually didn’t exist at the time the request was made, or that the employee is plainly not qualified for a vacant position that does exist, you may be able to deny the requested transfer.
While you should consider transfers to open positions, you aren’t required to blindly transfer an employee who requests a transfer as a reasonable accommodation. If you have concerns about whether your decision not to transfer a disabled employee would be defensible, contact an experienced labor and employment attorney.
Marylou Fabbo is a partner at the firm of Skoler, Abbott & Presser, P.C., and an editor of Massachusetts Employment Law Letter. She can be reached at 413-737-4753 or mfabbo@skoler-abbott.com.