Disabled employees may be entitled to transfer to an open position as a reasonable accommodation. But if that open position is subject to a collective-bargaining agreement, and another employee should receive the job under that agreement, the transfer would be unreasonable.
Recent case: Marcia Rector has had vision in just one eye from birth. She worked successfully for the Ohio Bureau of Workers’ Compensation until her duties changed. Rector began experiencing headaches and other problems because she was now spending 100% of her work time doing data entry.
When another position opened with less data-entry work, Rector asked to be transferred as a reasonable accommodation. However, another employee got the job because she was eligible under the bureau’s collective-bargaining agreement.
Rector sued, alleging the job should have been hers.
The court disagreed. It said that letting Rector step into the job would amount to forcing the bureau to violate the union contract. That would not be reasonable. (Rector v. Ohio Bureau of Workers’ Compensation, No. 09-AP-812, Court of Appeals of Ohio, 10th Appellate District, 2010)
Advice: Of course, always consider other accommodation possibilities. It might have been reasonable to alter Rector’s job duties to allow for more variety, or to give her more frequent breaks as a way to cut eyestrain.
You should also remember that you don’t have to accept the employee’s reasonable accommodation suggestion if you believe another, more convenient accommodation will accomplish the same result.
- State Supreme Court to rule on mandatory judicial retirements
- Make sure employees know FMLA policy on returning to work
- NLRB formally issues complaint against Walmart
- Spell out FMLA intermittent leave timing in handbook—or risk a million-dollar mistake
- Are employers required to ban texting while driving?