Read this post before accommodating a disabled employee with a job reassignment. (It could save you a lawsuit.)

The Americans with Disabilities Act requires employers to make reasonable accommodations to the known physical or mental impairments of an otherwise qualified individual with a disability. Technically, both courts and the U.S. Equal Employment Opportunity Commission consider reassignment to a vacant position to be a reasonable accommodation.

But, here’s the thing.

As a federal appellate court reminded an employer last month, reassignment is the reasonable accommodation of last resort.

[cue music – volume 10!]

A forced transfer.

A police officer develops a disability where he can’t wear his duty belt around his waist. The police officer requests reassignment to another position that allows him to wear a shoulder holster instead, and the city/police department agrees. Eventually, however, the rules change, and wearing a duty belt becomes an essential function of the reassigned position too. After some short-term light duty, the officer requests an exemption from the duty belt rule. Rather than acquiesce, the city/police department offers two options: (1) a civilian job; or (2) early retirement. The police officer selects the first option (with a salary increase in the new position). However, shortly thereafter, he decides it’s not for him and retires.

And then he sues for failure to accommodate under the ADA.

Reassignment is the reasonable accommodation of last resort.

Now, I’m going to ask you to assume that another accommodation is available instead of reassignment/early retirement. (I don’t know what it is, and neither did the appellate court. Apparently, the lower failed to analyze this.)

But, work with me here. Assume that the employer reassigned the employee against his will to another position despite the availability of a reasonable accommodation that would permit the plaintiff to perform the essential functions of his current position.

More often than not, that “forced reassignment” is an ADA violation. Indeed, the EEOC and courts generally agree that the reassignment is an accommodation of “last resort” that should be held “in reserve for unusual circumstances.”

The EEOC further explains (here) that: “Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship [on the employer].

Similarly, an employee cannot insist on a reassignment if other accommodations will keep him in the same positions.

Avoiding reassignment is “a win-win-win”

The appellate court explained that avoiding reassignment is “a win-win-win for employers, disabled employees, and their coworkers”:

Allowing other reasonable forms of accommodation to take precedence over reassignment prevents either the employer or the disabled employee from unilaterally insisting upon reassignment to a vacant position. It thus helps employers by protecting their discretion over hiring for the open spot. It helps employees by keeping them in their present job rather than hurling them into an unfamiliar position. And it protects the disabled employee’s coworkers by bolstering their confidence that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have labored.

Of course, the employer and employee are free to agree on reassignment. And it’s not as if reassignment can never be a reasonable accommodation.

It’s just the accommodation of last resort. Reserve it for situations in which there are no other accommodation options.






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