When Is Reassignment a Reasonable Accommodation?

Although the U.S. Equal Employment Opportunity Commission (EEOC) has called reassignment an accommodation of last resort under the Americans with Disabilities Act (ADA), transfer shouldn’t be overlooked by employers as a possibility before termination. Sometimes, an employee with a disability might even prefer it.

Calling reassignment an accommodation of last resort “depends on the context,” said Peter Petesch, an attorney with Littler in Washington, D.C. “If the employee brings it up as an option, it is no longer a last resort.”

Reassignment should always be on the “options board—something that should neither be jumped to at the outset nor forgotten as the accommodation process unfolds,” he explained. “It needs to be part of the calculus.”

Employers typically try to reasonably accommodate an employee within their current position first, said Myra Creighton, an attorney with Fisher Phillips in Atlanta.

Resorting to transfer only as a last-chance accommodation usually makes sense after trying other accommodations that allow the employee to perform the essential job functions without creating an undue burden on the employer, said Amy Epstein Gluck, an attorney with Pierson Ferdinand in Washington, D.C.

“Employers, however, sometimes forget to look at transfer when it’s an undue hardship to hold open the employee’s current position for the duration of an employee’s leave of absence, and jump to termination instead,” Creighton said.

Liability can result if an employer fails to reasonably accommodate within the position held even though such accommodation would have been feasible. There also may be liability if the company terminates an employee on a leave that is an undue hardship, when there was a vacant position for which the employee was qualified and that could have been held open for the employee, she added.

However, there is a split in the circuit courts as to whether an employer must give an employee with a disability the vacant position or whether it can require the employee to compete for the position, Creighton said.

When an employee with a disability is reassigned to a position they’re qualified to fill, it can be “vexing” to explain to a disappointed colleague vying for the same vacancy why another individual was selected, Petesch said. The ADA “places a gag on what employers can tell other employees about another employee’s accommodation,” he said.

How Far-Flung Must the Search for a Reassignment Be?

The best practice is for the employer to look companywide for a reassignment unless doing so is an undue hardship, Creighton said.

“Before doing so, however, the employer should ask the employee whether the employee is willing to relocate, and get the response in writing,” she said. “If the employee is unwilling to do so or is unwilling to relocate to certain locations, then the employer may limit its search to exclude positions in those areas to which the employee is unwilling to relocate.”

Employers should conduct an inventory of the employee’s skill level and qualification for alternative positions, Petesch said. “Remember that positions need not be created for someone—nor is promotion or bumping someone else out of their job required,” he noted.

As far as how long employers have to consider reassignment as a reasonable accommodation, “court cases employ amorphous terms such as ‘soon,’ ‘fairly immediate future,’ and ‘a reasonable amount of time,’ ” Petesch said. “That could be weeks or months, but even the EEOC has commented that six months stretches beyond a reasonable amount of time.”

If at the time transfer as an accommodation is being explored, no vacant position that the employee is qualified to transfer into is available or will become available within a reasonable amount of time, the employer may terminate employment, according to Creighton.

A transfer in violation of a collective bargaining agreement’s (CBA’s) seniority system presumptively is unreasonable, she said.

However, “[that] does not mean the transfer would never be reasonable,” she cautioned. For example, if the employer often makes exceptions to the seniority system, the transfer could be reasonable. “Before rejecting a transfer as a reasonable accommodation, the employer should look at its past practice with respect to the CBA’s seniority system,” she said.

Even when an employer looks at reassignment as a possible accommodation, sometimes it fails to consider reassignment to a lower-level opening as a possibility if reassignment to an equivalent position isn’t feasible, said David Fram, director of ADA & EEO Training with the National Employment Law Institute in Golden, Colo.

The employer should document every part of the interactive process for identifying an accommodation, including what the person accepts or refuses, Fram said.

It should also document all accommodations that have been provided, the reasons any accommodations would not be reasonable or effective to explain why they were not provided, and the reasons the accommodations would be reasonable and effective, said Tina Bengs, an attorney with Ogletree Deakins in Chicago and Indianapolis.

Keep an Open Mind

“Don’t automatically reject transfer as a reasonable accommodation when the employee can perform the essential functions of the current position when it is based on the need to be closer to medical treatment or a limitation arising from the current location,” Creighton said. Employers can agree to an employee’s transfer request even if the worker can perform the essential functions of their current job.

Finally, employers should assign an HR professional to review vacant positions with the employee who needs a transfer because of their disability, Creighton recommended. “Don’t simply tell the employee to find one and let you know,” she said.