Both the federal Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) affirmatively require employers to make reasonable accommodation for the known physical or mental disability of an applicant or employee, unless the employer can show that doing so would cause an undue hardship. Reasonable accommodation can include making existing facilities readily accessible to, and usable by, individuals with disabilities. Reasonable accommodation can also include: job restructuring; reassignment to a vacant position; part-time or modified work schedules; acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. This article discusses the scope of an employer’s obligation to reasonably accommodate an employee’s disability by reassignment to a vacant position.
WHEN SHOULD AN EMPLOYER CONSIDER REASSIGNMENT?
An employer should always consider reassignment when it is not possible to accommodate an employee’s disability in her current job, or when such an accommodation would cause the employer undue hardship. To take an example from a recent California case, if an operating room nurse develops an allergy to a solution used to sterilize surgical instruments, her employer might not be able to reasonably accommodate her in her current job without undue hardship. In this circumstance, the employer should consider reassigning the nurse to a vacant position that does not require her to come into contact with the sterilizing solution.
THE EMPLOYEE MUST BE QUALIFIED FOR THE NEW POSITION.
An employer does not have to reassign a disabled employee unless the employee is qualified for the new position. An employee is considered qualified if he is able to perform the essential functions of the new position with or without accommodation. In other words, an employer may, in effect, have to accommodate the disabled employee twice — first by reassigning the employee to a vacant position, and then again by making accommodations that will allow the employee to perform the essential functions of that position.
THE EMPLOYER NEED NOT CREATE A NEW POSITION.
An employer does not have to reassign an employee if no vacant position exists for which the employee is qualified. This means that an employer does not have to create a new position in order to accommodate a disabled employee, or bump another employee out of a position in order to create a vacancy.
THE EMPLOYER MUST TAKE AN ACTIVE ROLE IN LOCATING A VACANT POSITION FOR WHICH THE DISABLED EMPLOYEE IS QUALIFIED.
Several courts have recently held that it is not enough for an employer to merely allow an employee to apply for other jobs within the company. As one court has explained, all employees have the right to apply for other jobs within a company; reminding an employee of a right she already has is not a reasonable accommodation. And in the words of another court: “[T]he word ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned’; the core word ‘assign’ implies some active effort on the part of the employer.” These cases suggest that it is not enough for an employer merely to give a disabled employee a listing of all available jobs or to tell an employee to keep checking the job board. Instead, the employer should take an active role in attempting to identify and locate an alternative position for which the employee is qualified.
DISABLED EMPLOYEES MIGHT BE ENTITLED TO PREFERENTIAL CONSIDERATION FOR VACANT POSITIONS.
What if a disabled employee asks to be reassigned to a vacant position, but there is another applicant who is more qualified? Several courts have recently held that, if the disabled employee is minimally qualified for the position, she must be hired. In the words of one court, “when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration.” This means that an employer who decides not to reassign a disabled employee to a vacant position must be prepared to demonstrate that the employee was not qualified (i.e., that the employee could not perform the essential functions of that position, with or without accommodation).
What about disabled job applicants? Do employers have to give preferential treatment to disabled job applicants as well as disabled employees? Probably not. Both the ADA and FEHA specifically provide that reasonable accommodation can include reassignment to a vacant position, and, as several courts have noted, only existing employees can be reassigned. Moreover, at least one federal court has noted that the legislative history of ADA warns against preferences for disabled applicants, but contains no similar warning for disabled employees.
HOW DO SENIORITY SYSTEMS AFFECT AN EMPLOYER’S OBLIGATION TO CONSIDER REASSIGNMENT?
The existence of a seniority system that was negotiated under a collective bargaining agreement changes the rule that a qualified disabled employee must be given preferential consideration for vacant positions. An employer is only required to reasonably accommodate its disabled employees, and, as explained by one court, “[A]n accommodation that is contrary to the seniority rights of other employees set forth in a collective bargaining agreement would be unreasonable per se.” However, if the seniority system is not collectively bargained, but is instead merely imposed by the employer, the rule changes again. In such a case, an accommodation that is contrary to the seniority rights of other employees is not per se unreasonable. Instead, the existence of the seniority system is only one factor for the court to consider in analyzing whether the accommodation (i.e., reassignment in derogation of the seniority rights of other employees) would cause the employer undue hardship.