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One of the most controversial questions since the passage of the Americans with Disabilities Act of 1990 (ADA) has been whether an employer must reassign an employee who can no longer perform his or her job because of a disability. After years of conflicting decisions and arguments, the answer is now easy — yes. Virtually all federal courts have agreed with the EEOC that an employer must consider reassigning an employee in such circumstances. However, this raises a number of issues, such as: When should reassignment be considered? What positions must be considered for reassignment? Must an employer modify its seniority rules? And, must the disabled employee compete for the new position? Although there are legitimate questions about the scope of an employer’s reassignment obligation, some points are clear. First, reassignment is available only to employees, not to applicants. However, the EEOC has taken the position that “probationary” employees may well be entitled to reassignment if they have been performing the job to the employer’s satisfaction. Second, an employer does not have to bump any employee from a job in order to create a vacancy. Third, an employer does not have to promote an employee as a reassignment. Some courts have said this means that the employer does not need to promote someone from a part-time position to a full-time position, or from an hourly position to a salaried position. Fourth, an individual must only be reassigned to a job for which s/he is qualified (with an accommodation if necessary). WHEN SHOULD REASSIGNMENT BE CONSIDERED? With few exceptions, courts have agreed with the EEOC that reassignment is a “last-resort” accommodation, considered when the employee cannot be accommodated in his/her current job, or if both the employer and the employee agree that reassignment is desired. For example, in Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001), the employer offered to reassign a cable installer (who could not climb because of panic disorder) to a warehouse position, while the employee wanted an accommodation so that he could continue to perform his installer job. The court held that if the employee could be accommodated in his installer job (for example, with a “bucket truck” so that he could reach high cable without climbing), then reassignment to the warehouse would “not satisfy the requirements of the ADA.” WHICH POSITIONS MUST BE CONSIDERED FOR REASSIGNMENT? The EEOC has said that when reassigning an employee, the reassignment must be to a vacant position that is equivalent in terms of pay, status, geographic location, etc., if the employee is qualified for the position. In Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), the court noted that “the law is clear that an offer of an inferior position does not constitute a reasonable accommodation where a position with salary and benefits comparable to those of the employee’s former job is available.” Similarly, in Dilley v. Supervalu, Inc., 296 F.3d 958 (10th Cir. 2002), a truck driver wanted reassignment to another truck-driving position that he could perform within his lifting restrictions. The court rejected the employer’s argument that it attempted to accommodate the employee with a nonunion dispatch position that paid substantially less, since there may have been more equivalent truck driving positions available. “Vacant” means that the position is available when the employee asks for reasonable accommodation, or that it will soon be available (for example, it will be available within the next month). The EEOC has stated that an employer does not have to offer a job that it knows will open in 6 months because “[6] months is beyond a ‘reasonable amount of time.’” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No. 915.002″ (10/17/02) at “Reassignment.” Arguably, this rule does not require an employer to keep an individual on leave while waiting for an opening; rather, the employer would look at what was vacant (or what it knew would become vacant) at the time the individual needed the reassignment. Along these lines, in Bristol v. Board of County Commissioners of the County of Clear Creek, 281 F.3d 1148 (10th Cir. 2002), the court held that the determination of whether a position is vacant is made as of the time of the request for reasonable accommodation. In this regard, a position is vacant “only if the employer knows, at the time the employee asks for a reasonable accommodation, that the job opening exists or will exist in the fairly immediate future.” As a result, a position is not vacant if “the employer did not know at the time the employee asks for a reasonable accommodation that the position would become vacant in the fairly immediate future, even if it did in fact open up a reasonable time after the employee’s request had been made.” In this case, the court rejected the plaintiff’s claim that he should have been reassigned from his “jailor” position to a “dispatcher” position, which unforeseeably opened up soon after his request for reassignment. Of course, if there is no vacant, equivalent position, the employer must reassign the employee to a vacant, lower-level position for which the individual is qualified. However, an employer does not need to create a new position for the individual, including recreating a discontinued position previously held by the employee. For example, in Turner v. Turris Coal Co., 2002 U.S. App. LEXIS 12015 (7th Cir. 2002) (unpublished), the court held that the coal company did not have to re-create a previously eliminated administrative position for an injured coal worker. In addition, in Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001), the court held that a position is not vacant for purposes of reassignment simply because it is unfilled; rather, a position is vacant when the employer intends to fill the job. MUST AN EMPLOYER MODIFY ITS SENIORITY RULES IN REASSIGNING AN EMPLOYEE? In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002), the U.S. Supreme Court held that it would “ordinarily be unreasonable” for an employer to be required to modify its seniority policies so that an employee with a disability could be reassigned. The Court noted that “it would not be reasonable in the run of cases that the assignment in question trump the rules of a seniority system.” The Court stated that seniority systems provide “important employee benefits by creating, and fulfilling employee expectations of fair, uniform treatment.” Importantly, the Court noted that “the relevant seniority system advantages, and related difficulties that result from violations of seniority rules, are not limited to collectively bargained systems.” In deferring to seniority, however, the Court simply created a rebuttable presumption in favor of these policies. Specifically, the Court held that a plaintiff might be able to show “special circumstances” demonstrating that an accommodation that trumps seniority is still “reasonable.” This would include situations where seniority is not such an expected right, such as systems where an employer retains “the right to change the seniority system unilaterally [and] exercises that right fairly frequently, reducing employee expectations that the system will be followed,” or seniority systems which already contain exceptions so that “one further exception is unlikely to matter.” MUST THE DISABLES EMPLOYEE COMPETE FOR THE NEW POSITION? Another common question is whether, in carrying out its reassignment obligation, an employer can simply allow the employee to compete for a vacant position. Most federal Courts of Appeals have agreed with the EEOC that reassignment means that the employee gets the vacant position if s/he is qualified for it. For example, in Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999), the court held that “reassignment” means more than “merely allowing a disabled person to compete equally with the rest of the world for a vacant position.” The court stated that requiring the disabled employee “to be the best qualified employee for the vacant job” is incorrect under the statute. However, one Court of Appeals has continued to stick to the position that the ADA does not require “non-competitive” reassignment. In several recent cases, the Seventh Circuit has held that the ADA does not require “preferential treatment” for the disabled employee, just the opportunity to compete with others for the vacant position. CONCLUSION Reassignment as an accommodation raises many questions that will continue to be debated for years to come. Ultimately, the Supreme Court will be forced to decide these issues in a conclusive way. Until then, the numerous decisions coming down from the courts give guidance on the safe and risky approaches for employers to consider. David K. Fram is Director, ADA & EEO Services, for the National Employment Law Institute (NELI), headquartered in Denver. He has authored Resolving ADA Workplace Questions (edn. 14, NELI 2003), and is a member of this newsletter’s Board of Editors. Nothing in this column should be construed as legal advice from NELI or the author. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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