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Enabling the Disabled:
Reassignment Under the ADA
Practical Considerations
Any time an employer is faced with a disabled employee who can no longer
remain in his or her current position, the employer should ask two questions:
a) Is there any accommodation that would allow this employee to stay in
his or her current position? and, if not, b) is there any vacant position
this employee is qualified and able to do with or without an accommodation?
Reassignment should be considered only after every avenue
of accommodating the employee in his or her current position has been exhausted.
To determine if a disabled employee can be accommodated in his or her current
position, the employer should review all relevant medical information. The
employer should meet with the employee to agree on the essential functions
of the employee's current job; the physical, mental, or emotional demands
of that position; and the way in which the employee's condition creates
challenges or barriers to performing those essential functions. Depending
upon the circumstances, health-care providers and outside consultants may
need to be consulted to discuss possible accommodations.
After possible accommodations have been identified, the employer should
analyze whether any of these accommodations would create an undue hardship.
Those accommodations can be eliminated. Employers are free to choose among
any remaining accommodations, even if the chosen accommodation is not the
disabled employee's first choice.
If there is no accommodation that allows a disabled employee to remain
in his or her current position without undue hardship, the employer and
employee should discuss the employee's qualifications for any vacant position.
There also may be an obligation to analyze the employee's qualifications
for positions that will become vacant within a reasonable time. For example,
assume a collective bargaining agreement creates an entitlement to a 12-month
medical leave of absence. If an employee is on a medical leave of absence
because of an inability to perform the essential functions of his or her
position, and the disabled employee is not qualified for any currently vacant
position, there may be an obligation to consider transferring the disabled
employee into a position that becomes vacant during the medical leave of
absence. The EEOC has taken this approach in its interpretive guidance.31
The EEOC's new guidance also addresses the situation in which an employer
already has posted a vacant position for which a disabled employee is qualified.
The ADA requires employers to consider reassignment to any vacant position.32In its guidance, the ommission has stated: "A
position is considered vacant even if an employer has posted a notice or
announcement and is seeking applications for that position."33 Even if the posting process has begun, the position
is vacant and an employer must consider the disabled employee for the opening.
If the disabled employee is capable of filling the position, the employer
has an obligation to place the disabled employee in that position, even
if the disabled employee has not signed the posting and/or the employer
considers another nondisabled candidate to be better qualified.
Conclusion
The ADA's goal is to eliminate those barriers that prevent disabled people
from fully participating in society. To achieve this goal in the employment
context, the ADA compels employers to consider reassigning disabled employees
as a preferable alternative to their unemployment. The obligation to reassign
is an affirmative obligation that may, in some cases, entitle disabled employees
to "special privileges." However, based on the ADA's legislative
history, judicial interpretation, and the EEOC's interpretation, employers
must reassign qualified disabled employees, even at the expense of a more
qualified, nondisabled applicant, if the duty to reassign is to mean anything.
Endnotes
1Dalton
v. Isuzu-Suburu Automotive Inc., 141 F.3d 667, 676 (7th Cir. 1998);
Gile
v. United Airlines, 95 F.3d 492, 498 (7th Cir. 1996); Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). See also,
Benson v. Northwest Airlines Inc., 62 F.3d 1108, 1114 (8th Cir. 1995);
Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995).
2Aka
v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998);
Baert
v. Euclid Beverage Ltd., 149 F.3d 626, 633 (7th Cir. 1998); Dalton,
141 F.3d at 678; Gile, 95 F.3d at 499.
3Aka, 156 F.3d at 1305; Baert,
149 F.3d at 633; Dalton, 141 F.3d at 678; Eckles
v. Consolidated Rail Corp., 94 F.3d 1041, 1047 (7th Cir. 1996);
Gile, 95 F.3d at 499; McCreary
v. Libbey-Owens Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997).
4Aka, 156 F.3d at 1305; Baert,
149 F.3d at 633; Benson, 62 F.3d at 1114; Foreman
v. Babcock & Wilcox Co., 117 F.3d 800, 809 (5th Cir. 1997);
Gile, 95 F.3d at 499; McCreary, 132 F.3d at 1165.
5Malabarba
v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998); Dalton,
141 F.3d at 679.
6Aka, 156 F.3d at 1305; Barnett
v. U.S. Air Inc., 157 F.3d 744, 751 (9th Cir. 1998); Benson,
62 F.3d at 1144; Dalton, 141 F.3d at 678-79; Eckles, 94 F.3d
at 1050.
7Gile, 95 F.3d at 497-98.
8Id.
9156 F.3d 1284 (D.C. Cir. 1998).
10Id. at 1256, 1300, n.22.
11Id. at 1286 n.1.
12Id. at 1287.
13Id.
14Id. at 1300.
15Id. at 1303, 1311-12.
16Id. at 1311-12.
17Id. 1302, 1304.
18Id. at 1304-05.
19Id. 1304-05.
20Id.
21Cochrum
v. Old Ben Coal Co., 102 F.3d 908, 913 (7th Cir. 1996); Dalton v. Isuzu-Suburu
Automotive Inc., 141 F.3d 667, 676 (7th Cir. 1998); Gile v. United Airlines,
95 F.3d 492, 498 (7th Cir. 1996); and Hendricks-Robinson
v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998).
22Dalton, 141 F.3d at 678-79. See
also, DePaoli
v. Abbott Laboratories, 140 F.3d 668, 674-75 (7th Cir. 1998).
23S. Rep. 101-116 at 9; H.R. Rep. 101-485
(II) at 32-34.
24S. Rep. 101-116 at 9. See also,
H.R. Rep. 101-485 (II) at 32-34.
25Ida L. Castro, Chairwoman, EEOC Policy Guidance on Reasonable
Accommodation Under the ADA, 40 Daily Lab. Rep. 1 (March 2, 1999)
26Id. at 71-74.
27Id. at 75.
28Smith
v. Midland Brake Inc., ___ F.3d ___, 1999 WL 387498 (10th Cir. June
14, 1999) (en banc).
29Id. at *2.
30Id. at *4-*6.
31Id. 29 C.F.R.
§ 1630.2(o) app.
3242
U.S.C. § 12112(b)(5)(A).
33Castro, EEOC
Policy Guidance, 40 Daily Lab. Rep. 1, 77.
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