Q. One of our employees recently developed a condition that makes it difficult for her to perform the essential functions of her job. She has asked to be transferred to a job she can perform. Are we obligated to do this?
A. If the person has a disability under the ADA (generally defined as a substantial limitation of one or more major life activities), you should offer to reassign her to a position that she can perform, if such a position is available.
Under the ADA, an employer should consider reassignment as a form of accommodation when accommodation in the present job would be impossible or cause the employer undue hardship.
EEOC enforcement guidelines specify that employers should first look to reassignment to an equivalent position if one is available. If that’s not possible, the EEOC states, an employer “can” consider a lower-level position for which the employee is qualified.
It is unclear whether an employer must offer the worker a lower-paying position, but several courts have found that an employer should do so.
Reassignment is required only if a suitable lower-level position is available; the employer is not required to create a new job for an employee who requests a transfer as a reasonable accommodation. The employer also is not required to create an opening by displacing a nondisabled worker so that a disabled employee may move into that job.
Efforts to accommodate a disabled employee requesting reassignment are governed by what is “reasonable.” Thus, an employer should probably look outside the employee’s department if the company has multiple departments in the same location. The law doesn’t require an offer to transfer the employee to another city to find a suitable vacant position.
As with all efforts to reasonably accommodate an employee with a disability, you should document all discussions, suggestions considered, employee imposed constraints and the outcome of the process.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- OSHA: Employers must provide safety training in 'language and vocabulary' that worker understands
- Don't let your lawsuit fears prevent necessary discipline
- 9 employment-related executive orders that could disappear Jan. 20
- Have clear conduct rules or risk ADA nightmare