Don’t let your policy create an end run for disabled employees — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Don’t let your policy create an end run for disabled employees

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in Discrimination and Harassment,Human Resources

Denver's employment system blocked police officers and firefighters from being reassigned directly to other jobs in city government. They had to compete with noncity employees for jobs.

But that didn't excuse the employer from accommodating officers who were injured in the line of duty and unable to fire weapons or make a forcible arrest.

While disabled employees typically have to initiate the interactive process of requesting an accommodation under the Americans with Disabilities Act (ADA), in this case the no-transfer policy relieved them of that duty before going to court.

The 10th Circuit quoted the U.S. Supreme Court in saying, "the ADA does not require employees to engage in the 'futile gesture,'" such as requesting a transfer when they know the employer has a policy against reassignment. (Davoll v. Webb, No. 97-1318, 10th Cir., 1999)

The employer also argued that the officers were not covered under the ADA because they could not perform the essential functions of their jobs. The court disagreed, stating? that because they could perform the essential functions of the jobs they desired, they were protected by the ADA.

Advice: If you have a policy or practice (other than a collective bargaining agreement) that blocks transfer from one position to another, you must consider departing from this policy or practice for a qualified individual with a disability, even if the disabled employee does not make such a request.

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