A question that often comes up during the Americans with Disabilities Act interactive process is whether a disabled individual must be reassigned automatically to a vacant position as a reasonable accommodation, or whether a company can require the employee to compete for the position.
The federal appellate courts have split on this this issue. Although the courts have all acknowledged that an employer need not violate other important employment policies in order to provide a transfer; the question turns on what each court would consider a legitimate employment policy. Collective bargaining agreements and entrenched seniority systems are clearly such policies; however, a policy of hiring the best-qualified applicant is viewed differently by the different Circuit Courts that have addressed this issue.
The EEOC as well as the 9th, 10th, and D.C. Circuits, require automatic transfer, regardless of the relative qualifications of the disabled employee compared with other candidates for a vacant position. The 7th and 8th Circuits, on the other hand, have not required automatic transfer, holding that a reasonable accommodation offered the opportunity to compete for the position. However, the 7th Circuit recently took the unusual step of having the full bench review this position in EEOC v. United Airlines (although decisions are usually issued by a three-judge panel).
The full bench has now issued its decision to overturn its prior ruling in EEOC v. Humiston-Keeling on this issue. Now the law in the 7th Circuit states, as it does in the 9th, 10th and D.C. Circuits, that the ADA requires employers to transfer employees to a vacant position, provided that the transfer does not create an undue hardship, such as contravening a collective bargaining agreement or valid seniority policy. The Court specifically stated that a "best-qualified" hiring policy is not the same as a seniority policy.
At this time, the 8th Circuit remains the only federal appellate court to hold that automatic or mandatory reassignment is not required as a reasonable accommodation. However, because the 8th Circuit's position was based on the 7th Circuit's ruling in Humiston-Keeling, it has now become open to question.
For employers, this means that, even if it's clear that a disabled employee can't perform the essential functions of his or her position, you probably can't just terminate the employment relationship. Rather you should review your open positions to determine whether there are any that the employee can perform (with or without accommodation); if the employee is qualified for the position, offer it even if the employee is not the best qualified person for the job. It's also important to note that the EEOC takes the position that there are no geographic limitations on the open position, meaning that the company must consider positions at other company locations -- even those in other states.
Article courtesy of Shawe Rosenthal (www.shawe.com).