What if an employee becomes disabled and there’s no reasonable accommodation that would enable the person to keep working in their existing position? In this relatively common situation, according to two recent Americans with Disabilities Act cases, you may have to find the worker a new job. We’ll look at these decisions and give you an outline to follow to evaluate your legal responsibilities when a disabled employee seeks reassignment.
Employer Refuses Request For Reassignment
The first case involved 30-year employee Jackie McGregor, an Amtrak station ticket agent who couldn’t perform her job because of lifting restrictions due to an arm injury. After surgery on her arm, she requested a transfer to a position that didn’t require lifting. But Amtrak refused to let her return to work in that job or provide a reassignment.McGregor sued under the ADA, and the federal Ninth Circuit Court of Appeal confirmed that a reasonable accommodation can include reassignment to a vacant position. The court sent the case back to the trial court to determine whether Amtrak had any jobs available that McGregor could have performed and whether she properly exercised her right to bid for them.
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Disabled Employee Is Terminated
In the second case, Robert Smith, a Midland Brake Inc. assembler in Kansas, developed a chronic skin condition from exposure to chemicals at work. He couldn’t continue on the job and was fired.Smith sued Midland, arguing that the company had to find him another job he could perform. Midland contended that it wasn’t required to accommodate Smith because his disability prevented him from doing any assignments in its assembly department. The Tenth Circuit Court of Appeal explained that the ADA requires employers to provide reasonable accommodations that will allow disabled employees to remain in their existing job. If this isn’t possible, you must try to locate a vacant job in your organization that the employee is qualified to perform. A lower court will now determine whether Midland met these obligations.
A Road Map To Follow
The Court of Appeal in the Midland case went out of its way to specify guidelines for when you must reassign a disabled employee, as well as for when your obligation ends. Although this decision isn’t binding on federal courts in California, courts will likely look to it for guidance in interpreting similar ADA cases. Here are the key points:
- Engage in an interactive process. Some employers avoid talking frankly with employees about their precise limitations. But this is necessary to determine whether a worker qualifies, with or without an accommodation, for other jobs in the company. Also, if you know an employee is disabled, you’re required to take steps to accommodate the person, even if they haven’t specifically asked for it.
- Don’t violate union contracts, create new jobs or bump other workers. A job isn’t legally considered available if other employees have a vested right to it under the terms of a union contract or a well established seniority system. Also, you don’t have to create a new job simply to reassign a disabled worker. And you only have to consider positions that are currently vacant or will soon become available.
- Analyze which jobs the employee qualifies for. The ADA doesn’t require you to reassign employees to a position they’re not qualified for or to redefine the essential functions of an available job. Note that well written job descriptions play a critical role in the decision making process and will help you defend your position in the event of a dispute.
- Consider equivalent positions first. You can reassign a disabled worker to a lower-grade job only if there are no vacant positions that are equivalent in pay, status or other factors such as benefits or geographical location.
- Don’t require the employee to compete for the job. If a disabled worker qualifies for a vacant position and reassignment would be a reasonable accommodation, the worker is entitled to the job – even if they’re not the best qualified compared to other applicants.
- Choose the reassignment. The court in the Midland case made it clear that if there are multiple vacant jobs for which a disabled worker is qualified, you can decide which one the person should be offered. If the employee rejects the position you choose, you don’t have to suggest other jobs.
- Evaluate undue hardship. You’re not required to offer a reassignment if it would create an undue hardship for you. Relevant considerations include the nature and cost of the accommodation, your organization’s size and financial resources, and how the accommodation would impact your operations.