For ADA Compliance, Stay in Line—Don’t Forget to Reassign

April 1, 2019

The Equal Employment Opportunity Commission (EEOC) recognizes reassignment as “the reasonable accommodation of last resort.” As a result, it’s essential that, after attempting to provide other forms of reasonable accommodation, employers consider reassigning employees with disabilities before terminating them. If you fail to consider reassignment before termination, you expose yourself to liability under the Americans with Disabilities Act (ADA).

The Need to Reasonably Accommodate

Let’s say one of your employees has a disability. As a result of his disability, he can no longer perform the essential functions of his job, with or without a reasonable accommodation. Now what? You may think that’s the end of the road—that you have fulfilled your legal obligation, and terminating the employee is now justified. Think again.

The ADA requires employers to provide reasonable accommodations to employees with disabilities. When you’re working with an employee with a disability, you must first consider whether it’s possible to make a reasonable accommodation that would allow her to perform the essential functions of her job. If it isn’t possible to make a reasonable accommodation that would allow the employee to perform her current job, you should consider reassigning her to a vacant position. The EEOC Enforcement Guidance identifies reassignment to a vacant position as “the reasonable accommodation of last resort,” meaning you must consider it before terminating an employee with a disability.

The EEOC Enforcement Guidance indicates that it’s necessary to consider reassignment if:

  1. There are no reasonable accommodations you could make that would allow the employee to perform the essential functions of his current job; or
  2. You determine that making reasonable accommodations would impose an undue hardship on your organization.

The guidance emphasizes that employers must consider reassigning employees when they cannot perform the essential functions of their job, with or without a reasonable accommodation. The only way you can justify a failure to reassign an employee before terminating her is if you can demonstrate that reassigning her to a vacant position would’ve imposed an undue hardship on your business. However, your obligation to reassign the employee has limitations.

Employee Must Be Qualified to Fill the Vacant Position

Although the employee being reassigned need not be the most qualified candidate for the vacant position, he must be qualified for the job. The EEOC Enforcement Guidance indicates that an employee is qualified for a vacant position if she (1) meets the requirements of the position, including having the necessary skill, experience, and education, and (2) can perform the essential job functions, with or without a reasonable accommodation.

When you reassign an employee to a vacant position, you are obligated to provide the training you would customarily give to someone filling that position. The EEOC Enforcement Guidance clarifies that you don’t have an obligation to provide additional training that would qualify the employee to fill the vacant position. For example, consider a situation where you’re contemplating reassigning an employee with a disability to a job that requires a master’s degree, and the highest education level she has is a bachelor’s degree. You don’t have to pay for her to obtain her master’s degree so she can fill the vacant position.

Requested Position Must be Vacant

Your obligation to reassign an employee with a disability is limited to reassigning him to a position that’s vacant. You are under no obligation to terminate another employee to create a vacancy, nor must you create a new position to accommodate the employee.

The EEOC Enforcement Guidance states that a position is vacant if it’s available when the employee requests a reasonable accommodation or if the employer knows it will become available within a reasonable amount of time. The guidance doesn’t define what constitutes a reasonable amount of time because that’s a fact specific inquiry that must be performed on a case-by-case basis.

You Don’t Need to Promote the Employee

Reassignment doesn’t require you to promote an employee to a position that’s higher than the job he currently holds. If there’s a vacant position that’s higher than the position the employee currently holds, he must compete for the job with other qualified candidates if he wants to fill it.

If it’s possible to reassign an employee with a disability to a vacant position equal to the job she currently holds with respect to pay, status, benefits, geographical location, and similar factors, you should reassign her to that position. If an equal position is available, she doesn’t have to compete for it with other candidates. If there’s no vacant position that’s equal to her current position with respect to pay, status, benefits, geographical location, and similar factors, you must make an effort to reassign her to a lower level position before terminating her.

Bottom Line

If an employee with a disability can no longer perform the essential job functions with or without a reasonable accommodation, it’s critical to consider reassignment before terminating him. When you’re considering reassignment, remember:

  1. The employee must be qualified to fill the vacant position.
  2. You have an obligation to reassign the employee only to a position that’s vacant.
  3. You don’t need to promote the employee to a higher position.

If you terminate an employee with a disability before considering reassignment, you will be exposed to liability under the ADA. When you consider reassignment, you should appropriately document it in the employee’s personnel file.

For more information about "For ADA Compliance, Stay in Line—Don’t Forget to Reassign," contact Morgan K. Stippel at mstippel@axley.com or 608.260.2477.