Reassignment by an employer has long been recognized as a reasonable accommodation for a disabled employee as long as the employee is qualified for the position, the position is vacant, and the reassignment does not place an undue burden on the employer. Prior to September 2012, the Seventh Circuit, which has jurisdiction over Illinois district courts, held that the ADA did not require reassignment in instances where more qualified candidates applied for the position. EEOC v. United Airlines (2012 U.S. App. LEXIS 18804), overturned Seventh Circuit precedent; the court held that the ADA requires an employer to reassign an employee with a disability to a vacant job, assuming he or she is qualified for the job, irrespective of more qualified applicants for the position, unless it would place an undue burden on the employer.
Under the ADA, an employer may not discriminate against a disabled perspective or current employee and must provide disabled employees with reasonable accommodations in order to enable them to perform essential job functions.
What does this mean for employers?
It means that employers should reevaluate and revise their policies regarding assignment as an accommodation. Language allowing for competition or merely stating that disabled employees will receive preferential treatment is not strong enough. Rather, reassignment will be automatic if the employee is qualified, the position is vacant, and such reassignment does not place an undue burden on the employer.
Additionally, employers should consider updating job descriptions in order to avoid being forced to reassign employees to positions for which they are unqualified. These descriptions define prerequisites such as education, skills and licenses and adequately describe essential functions and other job duties. For example, an employer that wants certain employees to have experience within a particular department, industry, field, etc. will want to explicitly indicate a requirement for such experience within its job description for those positions. Where job-related, compliance with attendance and other company policies should be included in job descriptions to allow an employer to argue that transfer of an employee with a record of noncompliance is an undue hardship.
When would reassignment be required?
Reassignment would be required for any disabled employee who is qualified for a vacant position, assuming such reassignment does not create an undue hardship on the employer. For example, if a nurse is suffering from multiple sclerosis and requests an accommodation to limit his time on his feet, he may apply to a vacant reception position. Assuming the nurse is qualified for the reception position, the employer must reassign him to the position. Depending on how the employer has defined the position in the job description, this may be true even if the nurse has no experience as a receptionist and another candidate has extensive experience and better qualifications. This example highlights the importance of employers reevaluating job descriptions and defining what classifies an employee as ‘qualified.’
Roberta (“Bobbie”) Holzwarth is the Chair of the firm’s Employment & Labor Group. Bobbie represents employers in various employment and labor matters, including: counseling in complex ADA, EEO, FMLA and other workplace matters, sexual harassment investigations and training, negotiation of collective bargaining agreements, preparation of employment and no-compete agreements, and the preparation and review of employee handbooks and personnel policies.