Do you know this accommodation rule? It just cost this employer $158K

Under the ADA, a broad variety of accommodations may need to be provided to applicants and employees with disabilities. Both the statute and implementing regulations demonstrate this breadth by providing specific examples of changes that may be required as reasonable job accommodations. Among those named are:

• Making facilities accessible
• Job restructuring
• Provision of modified work schedules
• Acquisition of equipment or devices
• Provision of readers or interpreters

The bulk of potentially required accommodations involve changes to the job environment or adjustments to the way a job is usually done. One notable exception: The provision of leave, which may be required in some situations.

There is another notable type of accommodation that has tripped up many employers: Job reassignment to a vacant position. This is another example of a potential accommodation that is mentioned by name both in the statute and the regulations.

Many employers have gotten into trouble by taking too narrow of a view when it comes to the scope of their duty to reassign employees as a job accommodation.

A community hospital in Indiana recently learned the hard way that taking too narrow of a view of this duty can get expensive.

To settle a lawsuit filed against it by the EEOC, the hospital agreed to pay $158,000. The case involved a registered nurse who suffered a workplace injury that left her with lifting restrictions.

The EEOC said the nurse pursued several other jobs at the hospital that she was able to perform despite those restrictions. The hospital refused to reassign her to a vacant position and then terminated her employment because she could not return to her job, the agency alleged.

To end the suit, the hospital agreed to pay $158,000 and rehire the employee. It will also provide annual training about the ADA’s reasonable accommodation requirements to all of its HR employees.

Examining reassignment as accommodation

Let’s take a deeper dive into the parameters of the duty to reassign employees as a job accommodation.

First and most obviously, don’t dismiss a request for reassignment out of hand. It is clearly a form of accommodation that is contemplated by the ADA, and it may be required if there is a vacant job that the employee can perform.

Next, remember that the employee seeking reassignment must be qualified for the position they seek – and the employer is not required to help the employee become qualified for the new job.

Also, remember that the EEOC has described reassignment as an accommodation “of last resort.” This means it is required only when there is no reasonable accommodation that would keep the employee in their current job.

What exactly is a ‘vacant’ position?

The law says reassignment to a vacant position may be required. Just what does “vacant” mean? According to the EEOC, a vacant position is one that is open when the employee asks for accommodation – or will open up “within a reasonable amount of time.”

The agency’s guidance on the latter point is frustratingly vague, saying only that a “reasonable amount of time” should be determined on a case-by-case basis.

What if the employer has posted a notice seeking applications for a position? That position is vacant for purposes of the reassignment duty, the agency says. Here are some other important points to keep in mind relating to the reassignment duty:

• Probationary employees are entitled to the job accommodation of reassignment to a vacant position as long as they perform their job adequately during the probationary period.
• A policy generally banning transfers does not relieve employers of the duty to reassign as an accommodation. In other words, an employer cannot say, “We don’t do that here.”
• The duty to reassign extends beyond single facility locations for employers with a network of operations in different areas.
• It is the employer’s responsibility to tell the employee about vacant positions for which they may be qualified, according to the EEOC.
• Reassignment generally is not required if it would violate rules relating to seniority.
• Employers are not obligated to create a vacant position for an employee seeking reassignment.
• The EEOC’s position is that a qualified employee seeking reassignment as accommodation gets the vacant position even if others are qualified for it. In other words, the employee does not have to compete for the open spot.

The bottom line in ADA accommodation is always the same: Engage in a good-faith, interactive process to find a reasonable accommodation. And remember that reassignment may be required.