From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Engaging in the interactive process under the Americans with Disabilities Act (ADA) requires navigating a range of reasonable accommodation pathways. Some trails lead to familiar places, like making the workplace accessible, job restructuring, or modifying a schedule. Some paths are bumpy, flanked by twists and turns, and require time and patience to reach the destination, like purchasing equipment, modifying workplace policies, or providing access to leave. Sometimes the process requires navigating an entirely different path than was initially mapped-out, like changing lanes and taking the ramp that leads to reassigning an employee to a vacant position. This accommodation pathway is reasonably well-marked under the ADA, but can still lead those responsible for considering the accommodation to second-guess whether it’s the best route – kind of like when you’re relying on your GPS to get you home, but it generates a different route every time and you’re not sure if you can trust it.
The reassignment path can be trusted when exploring job accommodations under the ADA, provided certain rules are followed. The duty to consider reassignment as a form of reasonable accommodation is clearly articulated in the ADA regulations and enforcement guidance. The title I regulations of the ADA specifically include reassignment as an accommodation, and the Equal Employment Opportunity Commission (EEOC) formal enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA notes that this form of accommodation must be considered and provided, when reasonable. Interestingly, even the courts mostly agree with the EEOC position on this accommodation issue. Then why do employers still stumble when they reach the reassignment path as part of the accommodation process?
Likely for a number of reasons, but for one, it probably doesn’t seem logical to give an employee a different job when they can’t perform the essential functions of their current job. But, it’s important to remember that the ADA is meant to facilitate positive employment outcomes for individuals with disabilities. This means that, when a disability prevents an employee from performing the essential job duties of their original position, the possibility of maintaining employment by being placed in a vacant position the employer seeks to fill can lead to a successful employment outcome for all parties. When the interactive process reveals that reassignment is a possible accommodation solution, employers are expected to make that last ditch effort to keep the employee on the path of continued employment.
Reassignment is commonly known as the accommodation of last resort. This is because accommodations that will enable an employee to remain in their current position should, under ordinary circumstances, be considered first. However, this accommodation strategy should not be misinterpreted to mean that it’s only possible to consider reassignment when the search for accommodations in the original position is exhausted. Reassignment can be considered when:
- there is no reasonable accommodation that will enable an employee with a disability to perform the essential functions of their current position;
- both the employee and employer agree that an alternative position is a more preferable accommodation solution, in light of the employee’s limitations and ability to perform essential functions, with or without accommodation;
- an employee is on a leave of absence and their position cannot be held open during the entire leave period without posing an undue hardship, and if there is a vacant position to which the employee can be reassigned to continue the leave; or
- the location where work is performed causes a work-related barrier due to limitations affecting an employee’s commute, or the need to access specialized healthcare, and there is a vacant position at a different location that meets the employee’s disability-related needs.
What makes reassignment an accommodation under the ADA? The opportunity to be transferred to a new job with the same employer without having to go through the competitive hiring process. An individual with a disability who will be accommodated through reassignment shall not be required to compete for the alternative position. But, while a competitive bid for the vacancy is not required, the individual must be minimally qualified, though not necessarily the best qualified, for any vacant position under consideration, and must be capable of performing the essential functions of the job, with or without accommodation.
The path to reassignment can be bumpy when it’s not clear whose responsibility it is to identify vacant positions, and for what duration the parties will search. This is where it can be useful to have a procedure for processing this type of accommodation request. A procedure can assign organizational responsibility for the job search, and also make clear that the individual is invited to assist in identifying vacancies. The EEOC offers tips for drafting and implementing accommodation procedures, including reassignment procedures, in their guidance on Practical Advice for Drafting and Implementing Reasonable Accommodation Procedures Under Executive Order 13164. The information in this guidance informs the reasonable accommodation practices of federal government employers, but is a useful resource for other types of employers that must engage in the interactive accommodation process under the ADA.
Employers sometimes ask if an individual who will be reassigned as an accommodation can be expected to formally apply for vacant positions, or to interview for jobs that are selected. The answer to this question probably depends on why the employer wants to require this of someone who is not expected to compete for the job. For example, if the objective of asking the individual interview questions, or to complete an application, is simply to gather information to assess their qualifications and interest in the job, this may be possible. But, if the individual is minimally qualified for the position, they get the job regardless of the interview outcome. An interview may be useful when more than one vacancy has been identified and both the individual and the employer believe the process will present an opportunity to learn more information to determine which position is the best fit.
Upon making the decision to explore reassignment as the accommodation of choice, employers should be mindful of several points. First, reassignment will only be available as an accommodation if a vacant position is available, or will be in the reasonably near future. There is no duty to create a vacancy. The search for vacant positions should include those that are equivalent to the employee’s original position, in terms of pay and status, and does not have to be limited to positions within the employee’s original department or location. When an equivalent vacant position is not available, an individual may be reassigned to a vacant lower level position. In this situation, there is no duty to carry-over the employee’s original rate of pay, unless this is done for others in a similar situation.
Generally, employers are in the best position to know about potential vacancies, but the interactive process is collaborative and so both parties can take part in the job search. The duration of the job search may depend on the size of the employer, but should begin without delay and should be completed in a reasonable period of time. For example, smaller employers may have fewer available positions, and in-turn, may require a shorter duration of time to complete a thorough search. The duration could be days or weeks. Some employers have a policy of searching for a certain number of days (e.g., 30 to 60 days). According to the EEOC, upon the end of a reasonable search period, if no appropriate vacancies have been identified, the employer will have fulfilled its obligation to consider reassignment as an accommodation.
The idea of reassignment as an accommodation raises a number of questions for employers. A lot of ground was covered on this topic in this brief article, but there can be many twists and turns while navigating this path during the interactive process. You may have more questions about reassignment now. The REASSIGNMENT section of the EEOC formal enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA is a good place to start for more information. If you still have questions, Ask JAN, we can help!