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Send ADA reassignment letter explaining that employee can’t be accommodated in current job
SAN DIEGO—Employers often don't realize that they can reassign a worker to a vacant position to accommodate his or her disability. Instead, they mistakenly think that a leave of absence is the last reasonable accommodation they need to provide.
An employer that offers reassignment as an accommodation should send a letter to the employee it's accommodating telling him or her that it is seeking to reassign the person. The letter is a necessary step to keep the employer from having to offer reassignment for a lengthy period, according to Lucas Asper, an attorney with Ogletree Deakins in Greenville, S.C. Speaking at the firm's 2017 Workplace Strategies Conference on May 4, he added that the letter also should explain that the person can't be accommodated in his or her current job.
Once the letter is delivered, the employer has time to look for a reassignment, said Kenneth Siepman, an attorney with Ogletree Deakins in Indianapolis. He suggested four to six weeks was a reasonable time period.
The employer should first attempt to accommodate the person in his or her current position. Then a leave of absence may be required under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), or both, Asper noted. ADA leave can last months longer than the FMLA's 12 weeks, depending on the employer's resources and potential disruption to operations, according to ADA case law.
Once leave starts to disrupt operations to the point that the accommodation is no longer reasonable, the employer should consider whether the employee can return to his or her current job with or without reasonable accommodation. If not, the employer should consider reassignment, Asper said.
[SHRM members-only toolkit: Accommodating Employees' Disabilities]
The letter to the employee should specify that the person is still employed but not in any particular position and should note that the employer is trying to find a vacant position for which the person is qualified, Asper said.
The reassignment should be to a vacant position for which the employee is qualified, Siepman said. There is no obligation to bump anyone out of a job to make room for the person being accommodated.
The employer should look at vacant positions at all its facilities, not just the one the employee works at. If it finds an open position at another facility, the employee may decline or accept the offer.
Asper recommended asking the employee at the outset which facilities he or she would prefer as well as what's the lowest salary he or she would accept. The employee's pay doesn't have to be kept the same, but the employer should try to find a vacant position with roughly the same pay.
A promotion isn't required, Siepman noted. So, if the employee is making $16 an hour and says the lowest pay he or she will accept is something notably higher, he or she arguably is declining a transfer and insisting instead on a promotion, Asper observed.
A reasonable accommodation such as additional leave may be required before the reassignment, Siepman said.
Treat Just Like Others?
An employee with a disability can be required to apply for a transfer before being reassigned as long as all other employees seeking a transfer are required to do so, Asper said.
Whether the employer has to give a preference to the employee with a disability for the vacant position over other employees is a question that has divided the courts and ultimately may have to be resolved by the U.S. Supreme Court, Siepman noted.
But Asper said this question may come down to what level of risk employers are willing to tolerate. A reasonable accommodation is by its very nature something extra, and if an employee with a disability isn't given a preference, then he or she is not receiving anything additional, he noted.
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