The American with Disabilities Act's (ADA's) reasonable accommodation mandate
imposes potentially significant obligations on employers. This is particularly
true with regard to the obligation to provide additional unpaid leave and reassignment
to a different position of a disabled employee unable to perform in his or her
original position even with accommodation.
As interpreted by both the Equal Employment Opportunity Commission (EEOC)
and many courts, an employer now must consider providing significant additional
leave after an employee has exhausted the 12-week leave entitlement allowed
under the Family Medical Leave Act (FMLA). In addition, an employer may have
an affirmative duty to search for a suitable vacancy for a disabled current
employee and place such employee in the vacant position on a noncompetitive
This article summarizes recent case law on these expanding areas of reasonable
Most courts and the EEOC agree that unpaid leave is a form of reasonable
accommodation when it is necessitated by an employee's disability. Unpaid leave
may be appropriate when a disabled employee needs time off to get treatment
or recover from a disability-related illness, or take some type of other action
needed because of the disability, such as learning Braille or training a guide
dog. Unless an employer can show the leave would create an undue hardship, most
courts will view it as a reasonable accommodation.
Significant leave is not generally required except where the employer's own
policies provide otherwise. Likewise, most courts have held indefinite leave
is not a reasonable accommodation.
While the EEOC has constantly taken the position that leave is always an
accommodation, absent undue hardship, a number of courts have held leave is
an appropriate accommodation only in certain circumstances-the need for leave
must at least be related to the disability. See Bailey
v Amsted Industries, Inc., 172 F3d 1041 (8th Cir 1999) (where employee's
absenteeism not related to disability, employee not entitled to leave as a reasonable
accommodation under the ADA and did not qualify under the FMLA).
Though leave itself may be a reasonable accommodation, the amount of leave
that is reasonable is fairly fact-specific depending on the position the employee
holds, the needs of the employer, and the amount of time requested. For example,
in Haschmann v Time Warner Entertainment Co.,
151 F3d 591 (7th Cir 1998), the employer denied a leave request from an employee
who had flare-ups of lupus and instead terminated the employee for poor performance.
The court found the employer failed to show that leave would cause undue hardship
or that leave was an unreasonable request.
In contrast, the court in Walton v Mental Health
Assn. of Southeastern Pennsylvania, 168 F3d 661 (3rd Cir 1999), found
a 2½-month leave was excessive and caused undue hardship where employee's presence
was essential at the time due to fear the program she headed would fail for
lack of funding and leadership. Thus, where the employer can show the leave
would create undue hardship, it will not be liable for failing to accommodate.
However, any examination of leave should take into account the employer's
obligations under the FMLA. For example, in Cehr v Northeast
Ohio Alzheimer's Research Center, 155 F3d 775, 783 (6th Cir 1998), the
court noted that, by enactment of the FMLA, Congress has determined:
uninterrupted attendance in the face of a family medical emergency is
not a necessary job requirement and does not unduly burden employers.
It could fairly be said that leave under the FMLA is now a floor on the amount
of absence an employer must tolerate for an employee's disability under the
ADA. However, the FMLA does not create a ceiling on leave under the ADA.
Must the Employer Hold the Employee's Job Open?
The EEOC takes the position that the employer must hold the employee's job
open as a reasonable accommodation, unless doing so would create an undue hardship.
According to the agency's view, leave would hardly be an accommodation if the
employee could not come back to his former position.
However, if keeping the position open is an undue hardship, the EEOC states
the employer must then consider whether it has a vacant, equivalent position
for which the employee is qualified and to which he may be reassigned. The employee
is then still accommodated, and the employer's needs are met while the employee
is out on leave.
Courts that have dealt with the issue have insinuated that keeping the employee's
job open while she is out on an leave to deal with a disability is reasonable,
absent undue hardship. In Monette v Electronic Data
Systems, 90 F3d 1173 (6th Cir 1996), the court intimated that if the
employee expressed a desire to return to work through his words and actions,
the employer may have a duty to keep the employee's job open. See also Schmidt v Safeway, 864 F Supp 991 (D Ore 1994),
and Corbett v National Products Co., 4 AD Cas
987 (ED Pa 1995).
Definite versus Indefinite Time Periods
Most courts have stated that significant, indefinite, and unpredictable leaves
are not reasonable accommodations under the ADA. For example, in Gantt v Wilson Sporting Goods Co., 143 F3d 1042
(6th Cir 1998), the employee was terminated for failure to return to employment
after a 1-year leave of absence. The court ruled the employee was not discriminated
against because reasonable accommodation does not require to employer to wait
indefinitely for an employee's medical condition to be corrected.
Similarly, in Monette v Electronic Data Systems,
supra, the court ruled the employer could assume the employee was asking for
indefinite leave not required under the ADA where the employee never expressed
a desire to return to work and applied for permanent disability benefits.
In Walsh v United Parcel Service, 2000 WL
10605 (6th Cir January 6, 2000), the employee requested additional leave of
1 to 3 years after his employer already allowed him a 1½-year leave. The Sixth
Circuit stated that when an accommodation does not have a reasonable prospect
of allowing an individual to return to work in the identifiable future, "it
is objectively not an accommodation that the employer should be required to
provide." The court affirmed summary judgment for the employer, holding that:
when ... an employer has already provided a substantial leave, an additional
leave period of a significant duration, with no clear prospects for recovery,
is an objectively unreasonable accommodation.
The Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have agreed.
See, for example, the following cases.
- Myers v Hose, 50 F3d 278 (4th Cir 1994)
- Rogers v International Marine Terminals,
Inc., 87 F2d 755, 759-60 (5th Cir 1996)
- Nowak v St. Rita High School, 142 F3d
999, 1004 (7th Cir 1998)
- Corder v Lucent Technologies, Inc., 162
F3d 924, 928 (7th Cir 1998)
- Teague v Las Vegas Sands, Inc., 1997
U.S. App LEXIS 7618 (9th Cir 1997) (unpublished)
- Hudson v MCI Telecommunications Corp.,
87 F3d 1167 (10th Cir 1996)
- Duckett v Dunlop Tire Corp., 120 F3d
1222 (11th Cir 1997) (indefinite leave not required under the ADA)
However, where an employer's policies regarding leave are generous, some
courts have ruled that leave up to and including a year is not unreasonable.
See the following.
- Discussion under the "Consideration of Employer's Leave Policies" heading,
- Rascon v US West Communications, Inc.,
143 F3d 1324 (10th Cir 1998) (39 partially paid weeks available and 52 weeks
unpaid leave available under employer's disability plans)
- Ralph v Lucent Technologies, Inc., 135
F3d 166 (1st Cir 1998) (52 weeks paid leave available)
- Criado v IBM Corp., 145 F3d 437 (1st
Cir 1998) (52 weeks paid leave available)
- Cehr v Northeast Ohio Alzheimer's Research Center,
supra (180 days unpaid leave available)
Further, at least one court has determined that indefinite leave is not per
se unreasonable under the ADA. See Norris v Allied Sysco
Food Services, Inc., 948 F Supp 1418 (ND Cal 1996).
The EEOC's position on this issue, as well as on other accommodations, is
that the reasonableness should be determined on a case-by-case basis.
Most courts agree that reliable attendance is required to perform most jobs
and, therefore, an employer need not provide leave for employees taking unpredictable
absences. For example, in Waggoner v Olin Corp., 169 F3d 481, 484 (7th Cir 1999),
the court stated as follows.
[T]he ADA does not protect persons who have erratic, unexplained absences,
even when those absences are a result of a disability. The fact is that
in most cases, attendance at the job site is a basic requirement of most
Similarly, in Nowak v St. Rita High School,
supra, the court found an employee who was unable or unwilling to perform an
essential function of the job-regular attendance-for a period of 18 months was
not a "qualified individual with a disability." Likewise, in Jackson v Veterans Admin., 22 F3d 277, 280 (11th
Cir 1994), the court stated that employers under the Rehabilitation Act are
not required to accommodate periodic, unanticipated absences of a probationary
employee, and the employee was not qualified when he missed 6 days in 3 months.
In Carr v Reno, 23 F3d 525 (DC Cir 1994),
the court also found the employee not qualified when she could not appear for
work regularly. In Deal v Candid Color Systems,
1998 U.S. App LEXIS 15018 (10th Cir 1998) (unpublished), the court found the
employer did not have to reasonably accommodate an employee with leave where
the employee could work so sporadically and infrequently that a "second employee
would be required to perform her duties."
Likewise, in Nesser v Trans World Airlines, Inc.,
160 F3d 442 (8th Cir 1998), where the employer considered attendance to be an
essential function of the employee's position, and the employee could not show
that reasonable accommodation was possible with respect to his attendance, the
employer was entitled to summary judgment. Finally, where an employer maintains
an attendance policy, an employee who is terminated because of excessive absenteeism
is not a "qualified individual with a disability." See Greer v Emerson Elec. Co., 185 F3d 917 (8th Cir
See also the following cases.
- Halperin v Abacus Tech. Corp., 128 F3d
191, 198 (4th Cir 1997) (employees who are "unable to come to work on a
regular basis are unable to satisfy any of the functions of the job in question,
much less essential ones")
- Price v S-B Power Tool, 75 F3d 362 (8th
Cir 1996) (employer may adhere to strict attendance policy requiring not
more than 3 percent absenteeism as business necessity)
Finally, in Kennedy v Applause, Inc., 3 AD
Cas 1734, 1737 (CD Cal 1994), affirmed on other grounds, 90 F3d 1477 (9th Cir
1996), the employee's own physician indicated she could not maintain regular
attendance. The court therefore found that the employee was not qualified and
the employer need not provide the employee with an open-ended schedule.
Other courts leave the issue for the jury to decide whether or the degree
to which attendance is an essential part of the job in question. The court in Haschmann v Time Warner Entertainment Co., supra,
ruled the question is one of fact for the jury. The court said as follows.
We do not dispute that a business needs its employees to be in regular
attendance to function smoothly; the absence of employees is disruptive
to any work environment. However, it is not the absence itself but rather
the excessive frequency of an employee's absences in relation to that employee's
job responsibilities that may lead to a finding that an employee is unable
to perform the duties of his job. Consideration of the degree of excessiveness
is a factual issue well suited to a jury determination.
The EEOC does not see attendance as an essential function of any job under
the ADA, because it is not a job duty. This position has found support in at
least a couple decisions where the focus is on the amount of attendance missed
and the belief that uninterrupted attendance is never an essential function
of any position.
For example, in Cehrs v Northeast Ohio Alzheimer's
Research Center, supra, the court ruled no presumption should exist that
uninterrupted attendance is an essential job requirement (particularly in light
of FMLA), and medical leave of absence can be a reasonable accommodation, especially
where company routinely granted medical leave of absence to employees.
Similarly, in Dutton v Johnson County Bd. of County
Commissioners, 859 F Supp 498 (D Kan 1994), the court found that failure
to permit an employee to use accrued leave violated ADA. The court reasoned
that if the employer were willing to accept an employee's use of unscheduled
leave by allowing him to use his vacation time, the employee could perform the
essential functions of his job.
No-Fault Attendance Policies
Employers who have a "no-fault" attendance policy where all employees get
a certain amount of leave, after which they are terminated, may still employ
the policy as it is, not in itself an ADA violation. In Gantt v Wilson Sporting Goods Co., supra, the
court ruled that an employer's policy of terminating employees who have been
on leave for over a year did not violate the ADA. Similarly, a uniformly applied
attendance policy requiring not more than 3 percent absenteeism has been found
not to violate the ADA in Price v S-B Power Tool,
More recently, in Stanback v Best Diversified Products,
Inc., 180 F3d 903 (8th Cir 1999), the Eighth Circuit ruled that an employer's
attendance policy of termination after 10 days missed in a year was not in violation
of the ADA when nondiscriminatorily applied. However, in its Guidance, the EEOC
states an employer may not apply a "no-fault" leave policy to employees who
need leave beyond the stated time because of their disability. The policy must
be modified to provide the employee with additional leave unless the employer
can show another effective accommodation would allow the employee to perform
the essential functions of the position or granting additional leave would cause
The EEOC also states an employer may not discipline an employee for work
missed during a leave that is taken as a reasonable accommodation. This means
an employee's nonperformance during leave cannot be used against him when the
employer makes performance-based termination decisions. Examples given by the
EEOC include application of an employer policy that terminates poor performing
employees when the employee's poor performance was due to a leave for disability
reasons and considering a disabled employee for using leave for his or her disability
when leave is a necessary accommodation.
Consideration of Employer's Leave Policies
Some courts consider the employer's leave policies in determining whether
or not the requested leave would pose an undue hardship. For example, the First
Circuit reviewed an employer's leave policies in Criado v IBM Corp., supra,
and stated the employer could not claim undue hardship where its manager testified
the company's 52-week disability leave policy":
did not financially burden [the employer] because it recognized that
it was always more profitable to allow an employee time to recover than
to hire and train a new employee.
Similarly, in Rascon v U S West Communications, Inc.,
supra, the court found a 4-month leave of absence to attend inpatient treatment
program for post traumatic stress disorder was a reasonable accommodation where
employee requested leave of a specific duration, kept his employer appraised
of his status, and the employer had generous leave policies available to the
employee which the employer did not communicate when leave was requested.
Additionally, in Cehrs v Northeast Ohio Alzheimer's
Research Center, supra, the court considered the amount of time an employer
allows under a leave policy may be proof that leave of a lesser amount would
not cause undue hardship. Finally, in Ralph v Lucent Technologies, Inc., supra,
the court found that where an employer has a policy allowing employees 52 weeks
of paid leave, an additional 4 weeks of part-time work was a reasonable accommodation.
Modified or Part-Time Schedules
An employer may have to modify an employee's work schedule as a reasonable
accommodation. This includes modifying when things get done, the length and
number of breaks, and the employee's starting or departure times. The key in
these cases is whether the change is needed because of the disability, that
is, whether it will assist the employee in performing the essential functions
of the job, and whether the requested accommodation would cause an undue hardship
to the employer.
Where the requested accommodation is not because of the disability, courts
will not hold employers liable for failing to provide it. For example, in Turco v Hoechest Celanese Chemical Groups, Inc.,
101 F3d 1090 (5th Cir 1996) (per curiam), the Fifth Circuit rejected an employee's
claim that his employer unreasonably failed to accommodate him by failing to
provide a fixed daytime shift when the employer had only rotating shifts for
those in the position the employee held. The court found no violation because
the requested accommodation would not eliminate problems the employee had with
concentration, and it would require other employees to work harder or longer.
Similarly, in Gaines v Runyon, 107 F3d 1171
(6th Cir 1997), the court found an epileptic's request for a schedule change
was not necessary for his disability because his medical records showed only
that he needed a straight shift, which he already had.
The duty to accommodate an employee's disability by altering normal start
and ending times is not absolute. In Guice-Mills v Derwinski,
967 F2d 794 (2nd Cir 1992), the employer required the head nurse to report to
work at 8:00 a.m. At that time of day, the head nurse was in charge of the facility
and was the only manager and non-union person on duty. Since attendance was
an essential function of the position, the court found the nurse was not a qualified
individual with a disability.
Similarly in Buckles v First Data Resources, Inc.,
176 F3d 1098, 1101 (8th Cir 1999), the employer allowed the employee to leave
his work area when he thought he would be exposed to an irritant. Instead of
just leaving the work area, the employee left the building and went home. The
court ruled that the "unfettered ability to leave work at any time is certainly
not a reasonable accommodation."
Other than FMLA-reduced leave, courts generally do not feel the ADA provides
entitlement to part-time work. The EEOC states modification of a job to a part-time
position may be a reasonable accommodation, but its statement conflicts with
other well-founded principles.
First, employers need not create new positions for disabled employees. Ostensibly,
changing a position from full- to part-time would be creating a new position.
Second, full-time employment may be an essential function of the position.
Thus, the employee would not be a qualified individual with a disability if
she could not perform this function.
Third, the ADA does not require that employers transfer essential functions
of a position to other coworkers or hire someone to assist the disabled employee.
If the job requires a full-time person, the accommodation may not be reasonable
because the employer is forced to hire someone to assist or transfer the disabled
employee's duties to someone else when the employee is not there.
Most courts considering the issue suggest that part-time work is not a reasonable
accommodation. For example, in Terrell v US Air,
132 F3d 621 (11th Cir 1998), the court held that the employer was not obligated
to create a part-time position for a reservations agent with carpal tunnel syndrome.
Similarly in Burch v Coca-Cola, 119 F3d 305 (5th
Cir 1997), the court found the employer was not required to create a part-time
position if the employee's position required full-time duties.
In Soto-Ocasio v Federal Exp. Corp., 150 F3d
14 (1st Cir 1998), the court found the employee's job required 6 to 9 hours
of data entry every day. In that case, working part-time was not a reasonable
accommodation because it would reallocate the employee's job duties and create
more work for other employees, neither of which is required by the ADA.
Finally, if the employee's requested accommodation would remove the essential
functions of her position, it need not be provided because the employee is not
a "qualified individual with a disability." In Miller
v Illinois Dept. Of Corrections, 107 F3d 483 (7th Cir 1997), a guard
requested that her job be restructured so she would only rotate between the
two positions she could perform. Because the essential function of the guard
position required rotating through various duty positions and being able to
assist other guards, the court found she was not a qualified individual with
The ADA specifically lists "reassignment to a vacant position" as a form
of reasonable accommodation available to qualified individuals with disabilities
[42 USC § 12111(9)(B) (1994)]. Reassignment must be provided to employees who
can no longer perform the essential functions of their current position, with
or without accommodation, because of their disability.
The EEOC states reassignment is a reasonable accommodation of "last resort"
and is only required after determining that no effective accommodations will
enable the employee to perform the essential functions of his or her current
position or that all other reasonable accommodations would pose an undue hardship.
Although controversy exists about the breadth of an employer's duty to reassign,
some points are clear.
- Employees are only entitled to reassignment to vacant positions.
- The employee must be qualified for the position they seek, meaning they
can perform the essential functions of the position they seek with or without
- The employer does not have any duty to promote the employee to a vacant
- Employers are not required to bump other employees from positions to
accommodate the disabled employee.
- Only current employees, not applicants, are entitled to reassignment.
Employer's Duty To Help Employee Find a Position
The EEOC states employers have a duty to assist qualified individuals with
disabilities in locating vacant positions within their organization. At least
the Third, Seventh, and Tenth Circuits have agreed.
In Hendricks-Robinson v Excel Corp., 154 F3d
685, 695-96, 697-98 (7th Cir 1998), the employer had a policy of placing injured
workers in light-duty positions until they reached MMI. At that point, the employee
either had to return to his former job, if he could, or obtain a new position.
If no position was available, the employee was placed on medical leave for a
year, during which the employee was to call in weekly to inquire about open
positions for which they may be qualified.
The employer automatically bid the injured worker for production jobs, but
did not disclose nonproduction jobs unless the employee specifically asked.
Further, the jobs were only posted at the plant for a period of 2 days, where
the injured employee had no access. The court ruled Excel's policy violated
the ADA because it did not identify the full range of alternative positions
for which the individual may qualify.
Similarly, in Mengine v Runyon, 114 F3d 415,
420 (3rd Cir 1997), the court ruled an employer has a duty to make reasonable
efforts to assist an employee in identifying a vacancy because an employee will
not have the ability or resources to identify a vacant position absent participation
by the employer. See also Woodman v Runyon, 132
F3d 1330, 1334 (10th Cir 1997) (under Rehabilitation Act, federal employers
are far better placed than employees to investigate in good faith the availability
of vacant positions).
The Ninth Circuit has also intimated it will adopt this view. In McAlindin v County of San Diego, 1999 WL 717728
(9th Cir September 16, 1999), the Ninth Circuit reversed summary judgment on
the district court's finding that the employer was not required to assist the
employee in arranging a transfer. The court stated the issue is not whether
the employer normally assists employees in arranging transfers but "whether
a particular accommodation would be burdensome to the employer."
Further, the court held, there is a presumption under the ADA that an accommodation
is required absent a showing of undue hardship. Therefore, the burden is on
the employer to show the requested accommodation is unduly burdensome and poses
an undue hardship.
In Wellington v The Lyon County School Dist.,
___ F3d ___, 1999 WL 635742 (9th Cir August 23, 1999), the Ninth Circuit ruled
a fact question existed precluding summary judgment as to whether the employer
voluntarily created a position for an alleged disabled employee before it decided
to terminate his employment instead.
The Extent of the Search
Employers have successfully argued their obligation to reassign an employee
is limited to a specific department or location. In Riley v Weyerhaeuser Paper Co., 898 F Supp 324 (WD NC 1995), affirmed,
77 F3d 470 (4th Cir 1996), the court held that unless an employer regularly
transferred employees to another company facility, it need not transfer a disabled
employee to that facility.
Similarly, in Emrick v Libbey-Owens-Ford Co.,
875 F Supp 393 (ED Tex 1995), the court held an employer need only transfer
a disabled employee to another facility if it is the employer's regular practice
to do so. In other words, policies affecting an employee's ability to transfer
must be applied uniformly to disabled and nondisabled employees, and nondisabled
employees will not be treated more favorably.
The EEOC disagrees with this analysis. In its Guidance, the EEOC states that
because the ADA does not contain language limiting the duty to reassign to a
particular area, and the ADA requires an employer to modify workplace policies
as a reasonable accommodation, any policy limiting transfers "cannot be a per
se bar to reassigning someone outside his/her department or facility."
Further, the Guidance states that the ADA:
requires employers to provide reasonable accommodations, including reassignment,
regardless of whether such accommodations are routinely granted to nondisabled
Some courts agree with the EEOC. In Buckingham v
U.S. Postal Service, 998 F2d 735 (9th Cir 1993), the employee sought
a transfer from Mississippi to California for better medical treatment of human
immunodeficiency virus (HIV). The court ruled that because the government had
an affirmative duty to make a reasonable accommodation under the Rehabilitation
Act and is obligated not to interfere with an handicapped employee's efforts
to pursue a normal life, the employer must accommodate the employee unless doing
so would cause undue hardship.
In Gile v United Airlines, Inc., 95 F3d 492
(7th Cir 1996), the court rejected the employer's argument that it was only
obligated to consider reassigning the plaintiff to positions inside her department
for which she previously requested transfer.
Preferential Treatment for Disabled Employees
The EEOC states an employee with a disability is given preference over others
competing for the same position when reassignment is the only accommodation
available. Some courts agree.
In Smith v Midland Brake, Inc., ___ F3d ___,
1999 WL 3874978 (10th Cir 1999) (en banc), the Tenth Circuit examined this issue
and agreed with the EEOC. The court stated that the ADA gives disabled employees
preferential treatment in reassignment over other candidates for the position
because, reading the statute as a whole, reassignment is an accommodation, which
is more than an opportunity to compete with others for the same position.
Similarly, the court in Aka v Washington Hosp. Ctr.,
156 F3d 1284, 1304-05 (DC Cir 1998), reasoned that:
[a]n employee who is allowed to compete for jobs precisely like any other
applicant has not been "reassigned."
The court in Wood v County of Alameda, 5 AD
Cas 173, 184 (ND Cal 1995), also stated an employee who can no longer perform
the essential functions of her old job because of a disability is entitled to
reassignment to a vacant position, not just an opportunity to compete.
The Fifth Circuit ruled opposite in Daugherty v City
of El Paso, 56 F3d 695 (5th Cir 1995), certiorari denied, 516 U.S. 1122,
116 S Ct 1263, 134 L Ed 2d 211 (1996). There, the court stated as follows.
[W]e do not read the ADA as requiring affirmative action in favor of
individuals with disabilities, in the sense of requiring that disabled persons
be given priority in hiring or reassignment over those who are not disabled.
Employee Qualification and Reassignment Eligibility
Some courts have ruled that the employee must be qualified for the position
they currently hold to be entitled to reassignment to another position. For
example, in Schmidt v Methodist Hosp. of Indiana, Inc.,
89 F3d 342 (7th Cir 1996), the court held a nurse with hearing loss who could
not perform the essential functions of position for which he was hired was not
a qualified individual under the ADA and thus not entitled to reassignment.
The EEOC and most courts disagree and hold the individual must only be qualified
for the position to which they seek to be reassigned. See, for example, the
- Cassidy v Detroit Edison Co., 138 F3d
629, 634 (6th Cir 1998) (employer has a duty to reassign when employee cannot
be accommodated in current position)
- Monette v Electronic Data Systems, supra
(employers may be required to transfer a disabled employee to a vacant position
for which he or she is qualified)
- Benson v Northwest Airlines, 62 F3d 1108
(8th Cir 1995) (reassignment may be required under the ADA)
- DePaoli v Abbott Laboratories, 140 F3d
668, 675 (7th Cir 1998) (the ADA compels consideration of job reassignment
to a vacant position for which the employee meets the nondiscriminatory
- Baert v Euclid Beverage, Ltd., 149 F3d
626, 633 (7th Cir 1998) (an employer must transfer a disabled employee to
a position for which she/he is otherwise qualified)
- Gile v United Airlines, supra (the court
rejected the employer's argument that because the employee could not perform
the essential functions of her current position with or without accommodation,
she was not "qualified" under the ADA and thus not entitled to reassignment)
Reassignment to Equivalent or Lower Level Position
An employee is not entitled to be reassigned to a position that would constitute
a promotion, but rather only to a vacant position equivalent to the position
they currently hold and for which they are qualified. The Second Circuit has
found that where a position exists which is equivalent in pay and benefits,
the employer does not discharge its duty to reasonably accommodate under the
ADA by offering the employee positions that are inferior in pay and benefits.
See Norville v Staten Island Univ. Hosp., 1999
WL 996945 (2nd Cir November 2, 1999).
If no equivalent position is available, the employer must reassign the employee
to a vacant lower level position if available. For example, in Fjellestad v Pizza Hut of America, Inc., ___
F3d ___, 1999 WL 642958 (8th Cir August 25, 1999), the unit manager of a restaurant
could no longer perform the essential duties of her position due to restrictions
on the amount of hours she could work. When her subordinate, the swing shift
manager, was promoted to the disabled employee's position, the unit manager
requested the demotion to swing shift manager, which she stated she could perform.
The court ruled the employee may be entitled to reassignment to her subordinate's
position if it was within her restrictions.
See also Cassidy v Detroit Edison Co., supra
(reassignment to a lower job grade position appropriate if employee cannot be
accommodated in current or comparable position).
The ADA is being construed to impose significant obligations on an employer
to provide leave and reassignment in order to avoid termination of injured or
ill employees with a disability. Employers should carefully consider adopting
a proactive disability management program to ensure appropriate leave, reassignment,
and other accommodation of disabled employees.