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Employee Reassignments Under the ADA
The United States Supreme Court was poised this term to decide an important issue arising under the Americans With Disabilities Act ('ADA') that has vexed employers for years. At issue was whether the ADA requires employers to reassign an employee who, due to a disability, can no longer perform the essential functions of his position, to a vacant, equivalent position for which he is qualified or whether the disabled employer must merely permit the employee to compete for such a position with other applicants. Unfortunately, the case of Huber v. Wal-Mart Stores, Inc. settled after the Supreme Court had granted certiorari to decide this issue, leaving an existing split among the circuits.
The ADA identifies 'reassignment to a vacant position' as a 'reasonable accommodation.' 42 U.S.C. ' 12112(b)(5)(A). Thus, it is by now well settled that, if a disabled worker cannot longer perform the essential functions of his position, the employer must consider reassigning him to other vacant positions for which the employee is qualified. The Equal Employment Opportunity Commission('EEOC') has issued an interpretive guidance describing its view as to what employers are and are not required to do vis-'-vis reassignment of disabled employees who can no longer perform their essential job functions, with or without accommodation. See Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, EEOC Enforcement Guidance No. 915.002 (Oct. 17, 2002).
Within that guidance, the EEOC has unequivocally espoused its view that, with limited exception, a disabled employee must be reassigned to an equivalent, vacant position for which he is qualified. The EEOC interprets the term 'reassignment' to mean that 'the employee gets the vacant position if s/he is qualified for it.' Id. This is so, even if the employer has a policy and practice of awarding job vacancies to the most qualified candidate and the disabled employee is not 'the best qualified individual for the position.' Id. Reassignment does not mean merely permitting a disabled worker to compete with other applicants for a vacant position.
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