Does the ADA mandate transfer preferences for disabled employees?

 

Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association – New Jersey Annual Conference.

I must admit that I was a bit leery. While it sounded legitimate enough — they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities Act — being the guy with The Employer Handbook blog, I half expected to be chloroformed upon arrival, and buried under a jughandle, left to be constantly trampled by folks making left turns from the right lane.

But, instead, I spoke to a sharp, engaged audience and met some wonderful people. (NJ management-side lawyers: there’s a reason we get paid the big bucks. These employee-side folks don’t make it easy!)

Our panel addressed a variety of different reasonable accommodations for disabled employees needing a little extra help to perform the essential functions of their jobs. While the bulk of the session focused on leave as a reasonable accommodation; specifically, how much is reasonable, we also touched upon job transfers. Here, the law is quite clear that a transfer to a vacant position for which the disabled employee is qualified is a reasonable accommodation.

However, what happens of the only open position available is one for which the disabled employee is barely qualified and you have another candidate for the same position, but with impeccable credentials? Must you accommodate the less-qualified disabled employee with the transfer, if no other reasonable accommodation is available?

*** makes sure lawyers hat is snug on head ***

The answer depends on where you operate your business.

In the Eighth Circuit (AR, IA, MN, MO, NE, ND, SD), the company may fill the position with the more qualified candidate. The same used to be true in the Seventh Circuit (IL, IN, WI), but not anymore. ADA also trumps in the Tenth Circuit (OK, KS, NM, CO, WY, UT, parts of MT and ID), and the DC Circuit.

For companies in the remaining states, your guess is as good as mine. And since I went with the Minnesota Vikings this week in my NFL survivor pool, I’m not feeling too lucky today. However, I can offer this: when discussing accommodations with employees, be respectful. It’s not easy for someone with a disability to open up about their disability to anyone — let alone their employer. And have an open-minded conversation with that employee. Work together to explore various options available. Maybe, that way, you won’t find yourself in the position of having to make the difficult call on a transfer, but instead, arrive at a solution that works for everyone.