Employers Must Consider Job Reassignment as a Reasonable Accommodation Under the ADA

April 24, 2002

According to the Equal Employment Opportunity Commission (“EEOC”) and recent court decisions, employers engaging in the interactive process under the Americans With Disabilities Act (“ADA”) with a disabled employee must consider not only accommodating the employee in his or her current position but also reassigning the employee to a vacant position.

Both the U.S. Court of Appeals for the Eighth Circuit and the Sixth Circuit recently joined other federal appeals courts in ruling that employers must consider employee reassignment to a vacant position as a reasonable accommodation under the ADA.

In Cravens v. Blue Cross and Blue Shield of Kansas City, the employee’s job as an insurance claims processor required her to spend a substantial amount of time keying claims information into a computer system. Over time, she was diagnosed with bilateral carpal tunnel syndrome and was permanently restricted to little or no keyboard activity.

For the next two months, the employee was given a series of non-keyboard assignments and was eventually called to a meeting with her supervisor and a human resources representative. During the meeting, the employee was told to utilize the company’s internal application process to find another position in the company that did not require keying and that she had 1012 weeks to do so or be terminated.

After the meeting, the employee sent a memo to the human resources representative requesting “as much assistance as possible,” but she was unable to secure another position within the articulated time frame and was terminated.

After she was fired, the employee sued under the ADA and state law claiming that her employer failed to accommodate her disability by neither reassigning her to another position nor helping her locate another position. The federal district court dismissed the employee’s case finding that she couldn’t establish a prima facie case of discrimination.

On appeal, the Eighth Circuit reversed the district court’s ruling, holding that further proceedings were needed to determine whether the company could have reassigned the employee to a vacant position. While acknowledging that reassignment may not be required of employers in every instance, the court stated that the language of the ADA, the regulations and the legislative history of the ADA clearly indicates that in certain circumstances, reassignment may be necessary as a reasonable accommodation. However, in reaching this conclusion, the court noted that the scope of an employer’s reassignment duty is limited by a number of constraints. For example, the prospect of job reassignment doesn’t even arise unless accommodating the employee in his or her current position would pose an undue hardship. Moreover, an employer is not required to create a new position or to “bump” an employee from an existing position to create a vacancy.

The Sixth Circuit similarly held in Burns v. Coca-Cola Enterprises, Inc. that under the ADA, an employer is obligated to consider reassigning a disabled employee to a new position for which he or she is otherwise qualified if that employee can no longer perform his or her old job even with accommodation.

These recent decisions reaffirm that employers need to ensure that they consider job reassignment as a form of reasonable accommodation. When doing so, however, employers need to be mindful that the EEOC has taken the stance that if the disabled employee is qualified, he or she should receive the vacant position without having to compete for it. An employee is qualified for a vacant position if he or she satisfies the requisite skill, experience, education and other job-related requirements and can perform the essential functions of the new position with or without a reasonable accommodation. To date, most federal courts appear to support the EEOC’s position.

For more information, please contact randrykovitch@cohenlaw.com or lgarrett@cohenlaw.com.