The reasonable accommodation you can’t afford to forget
 
By Katie Loehrke, J. J. Keller & Associates, Inc.

A sanitation worker had a heart condition that left him with a 20-pound lifting restriction. That restriction meant that the employee was unable to perform the essential functions of his job and, according to his employer, no reasonable accommodation was available to allow him to do so. Once the employer learned that the lifting restriction would be permanent, the employee was fired. But in court, it was found that the employer forgot to consider one possible accommodation: reassignment.
 
Under the Americans with Disabilities Act (ADA), when a reasonable accommodation is not available to help an employee perform his/her current role, the employer must remember that transferring an employee to a vacant position can be a reasonable accommodation.
 
When reassignment should be considered
For reassignment to be an option, the employee must be qualified for the alternate position and must be able to perform (with or without a reasonable accommodation) the functions of the position. The employer, not the employee, is generally responsible for identifying open positions for which the employee is qualified.
 
While the U.S. Courts of Appeals are split on the issue, the Equal Employment Opportunity Commission has indicated that the employee should not be required to compete with other applicants for open positions.
 
Reassignment need not be considered when it would include a promotion, and employers generally do not have to consider it when another employee is entitled to the position under a uniformly-applied seniority system.
 
Reassignment doesn’t require displacement
If vacant positions aren’t available, the ADA does not require employers displace another employee as a reasonable accommodation. However, in the case at hand, the employer had numerous open positions.
 
Still, instead of considering a different role for the employee, the employer continued to extend his medical leave and asked him to alert the employer when he could return to his previous position without restrictions. This transpired even though the employee informed the employer that he was “willing to accept whatever work assignment that [was] available.”
 
In the end, the employee received a settlement consisting of $90,000 in back pay, interest, and compensatory damages. He was also offered reinstatement with retroactive seniority and benefits. The employer agreed to recordkeeping and reporting requirements, and to provide mandatory training on the ADA. (U.S. vs. City of Philadelphia, February 6, 2017)
 
This case involved a public employer and was tried under Title I of the ADA, but private employers are also required to consider transfer or reassignment as a reasonable accommodation.
 
Don’t forget the documentation
When considering reasonable accommodations, employers should document what accommodations were considered and why they were not successful or why they would impose undue hardship. And, when considering reassignment specifically, employers should document the positions that were vacant at the time of the employee’s need, along with how his or her qualifications matched up to those openings. 
 
 
 
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