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 issue. Although courts agree an employer need not violate other important employment policies to provide a transfer, they disagree about which employer policies are legitimate limits on reassignment.
Collective bargaining agreements and seniority systems are clearly legitimate limits, but panels have treated a "hire the best-qualified applicant" policy differently. The EEOC and the 9th, 10th, and D.C. Circuits require automatic transfer regardless of relative qualifications, while the 7th and 8th Circuits historically have not, viewing the chance to compete as a reasonable accommodation. The 7th Circuit recently had the full bench review the issue.
The full bench in the 7th Circuit overturned its prior ruling in EEOC v. Humiston-Keeling and now aligns with the 9th, 10th and D.C. Circuits: employers must transfer employees to vacant positions as a reasonable accommodation unless the transfer would create undue hardship, such as violating a collective bargaining agreement or a valid seniority policy. The court emphasized that a "best-qualified" hiring policy is not the same as a seniority policy.
The 8th Circuit remains the only federal appellate court that has held mandatory reassignment is not required, but that position is now subject to question following developments in other circuits.
For employers, this means that even if an employee cannot perform the essential functions of their current job, termination should be a last resort. Employers should review open positions to determine whether any can be performed with or without accommodation and offer qualified employees those positions even if they are not the best-qualified candidate. For more on lateral reassignment and accommodation practices, see Understanding Reasonable Accommodations and Lateral Transfers.
Employers should also note the EEOC's view that geographic limits generally do not apply to the pool of positions that must be considered, which may include openings at other company locations. For guidance on how accommodation issues can interact with insurance and workplace policies, see Understanding Reasonable Accommodations and Insurance Policies.
Article courtesy of Shawe Rosenthal.
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Frequently Asked Questions
Does the ADA require an employer to reassign a disabled employee to any vacant job?
The ADA can require reassignment to a vacant position as a reasonable accommodation unless doing so would cause undue hardship, such as violating a collective bargaining agreement or seniority system.
Can an employer make a disabled employee compete with other candidates for a vacant position?
Circuit courts differ, but many courts and the EEOC hold that employers must transfer the qualified disabled employee without requiring them to be the best-qualified applicant.
Are there geographic limits on which vacancies must be considered?
The EEOC takes the position that employers should consider openings at other company locations, though practical limits may apply depending on undue hardship factors.