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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

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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.