Today’s blog entry deals with the question of what happens when an employer demands that an employee move to a different job without evaluating or completely assessing whether that employee is capable of performing his or her current job’s essential functions with or without reasonable accommodations. The answer to the question says the Fourth Circuit in Wirtes v. City of Newport News18618619620367207, a published opinion decided April 30, 2021, is that the employee survives summary judgment. This case is different than the usual reassignment situation where the person wants to be reassigned and the employer resists. Here, the employee did not want to be reassigned, claimed he could do the essential functions of the job with reasonable accommodations, and had no choice but to leave the employment because the employer insisted on the reassignment. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an employer must explore all options prior to insisting on reassignment; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The facts can be condensed quite a bit. In short, what happened here is that you have a police officer that developed a condition as a result of wearing a duty belt they have to wear on their waist. In the end, instead of fully assessing whether the police officer could do the essential functions of his job with or without reasonable accommodations, the employer demanded that the police officer be reassigned to a non-detective position. At first, he accepted the position. However, he then reconsidered, retired, and then sued for disability discrimination, including failure to accommodate. He loses on summary judgment and appeals.

 

II

Court’s Reasoning that an Employer Must Explore All Options Prior to Insisting on Reassignment

 

  1. The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability.
  2. An employee is qualified if they can perform the essential functions of the employment position they hold or desire with or without reasonable accommodations.
  3. A prima facie case for failure to accommodate under the ADA involves showing: 1) the person is an individual with a disability under the ADA; 2) the employer had notice of the disability; 3) the individual could perform the essential functions of the position with reasonable accommodations; and 4) the employer refused to make such an accommodation.
  4. In a footnote, the Fourth Circuit said evaluating an employee’s physical issues is not a reasonable accommodation. Instead, reasonable accommodation, per 29 C.F.R. §1630.218718719720468208(o), refers to modifications or adjustment to the work environment that enables an individual with a disability who is qualified to perform the essential functions of that position to stay in that position. So, the only plausible accommodation cited by the district court was the City’s offer to reassign the plaintiff to a position as a logistics manager.
  5. In another footnote, the Fourth Circuit said that it was error for the district court to not explicitly find what the essential functions of plaintiff’s desired position were or that there were no other reasonable accommodations available so that transfer was the only viable option. In this same footnote, the court goes on to say that the practical effect of the ruling is when an employer decides to accommodate an employee by reassigning them, district courts need to consider whether other reasonable accommodations exist that permit the employee to perform the essential functions of their current position with reasonable accommodations. As such, that inquiry will require district courts to consider what the essential functions of the position are before jumping to whether the employee was properly accommodated.
  6. Reassignment is the ADA’s accommodation of last resort and such a view is supported by both the EEOC and case law.
  7. The EEOC has long advised that before considering reassignment as a reasonable accommodation, employers should first consider those accommodations enable an employee to remain in his or her current position.
  8. The EEOC has explicitly said that reassignment is the reasonable accommodation of last resort and is required only after it has been determined: 1) there are no effective accommodations enabling the employee to perform the essential functions of his or her current position; or 2) all other reasonable accommodations impose an undue hardship on the employer.
  9. The undue hardship standard has been adopted by several circuit courts to explain that an employer can reassign an employee with a disability at the employee’s request where any other reasonable accommodation poses an undue hardship to the employer.
  10. In a footnote, the court cited to an 8th Circuit case holding that the very prospect of reassignment does not even arise unless accommodation within the individual’s current position poses an undue hardship.
  11. Treating reassignment as a last among equals respects the core values underlying the ADA and employment law more generally.
  12. The ADA’s treatment of reassignment as a last among equals accommodation is a situation where employers, employees with disabilities, and the coworkers of employees with disabilities all win. That is, allowing other reasonable forms of accommodation to take precedence over reassignment prevents either the employer or the employee with a disability from unilaterally insisting upon reassignment to a vacant position. It also helps employers by protecting their discretion over hiring for the open spot. It helps employees by keeping them in their present job rather than forcing them into an unfamiliar position. It also protects the employee with a disability coworkers by both during their confidence that the misfortune of a colleague does not unfairly deprive them of opportunities for which they themselves have worked for. So, reassignment is something that should be held in reserve for unusual circumstances.
  13. Reassignment is a disfavored accommodation that employers are generally under no obligation to offer.
  14. Every Circuit (Seventh, Third, Tenth, D.C.), that has considered the question of whether reassignment to a vacant position is permissible when the employee wishes to stay in their current position and can perform the essential functions of that position with reasonable accommodations has concluded that the employer has failed to accommodate an otherwise qualified employee.
  15. It does not appear that any circuit court has treated transferring the employee wishing to remain in their current position who was qualified to do so as being a reasonable accommodation.
  16. Reassignment is strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. In my view, what the court says about why the accommodation of reassignment is a last resort makes a great deal of sense. In fact, to me it makes so much sense that I don’t expect to see a circuit court split on the issue of whether reassignment is a last resort or not.
  2. Interactive process interactive process interactive process. Be sure to get it right as we discussed here18818819820569209.
  3. How do you go about figuring out what are the essential functions of the job? You can start with job descriptions. Be sure to talk to people who actually do the job. Make sure you get with legal counsel to make sure that the job description is not screening out people with disabilities. Finally, make sure you have some kind of system to periodically check on the particular job’s essential functions. Jobs always evolve over time and essential functions are not static. By way of analogy, you might look at this blog entry as well18918919920670210.
  4. It makes good business sense to exhaust all possibilities with the current job before reassigning a person to another job. The employee would be more motivated to stay in that job, knows the job already, and no need to retrain.
  5. Remember you have to make reasonable accommodations unless there is an undue hardship (logistical or financial, both of which are hard to show).
  6. In the Fourth Circuit, failure to accommodate is a separate cause of action.
  7. Don’t forget about the Job Accommodation Network. They are a great resource for working out difficult reasonable accommodation situations.
  8. I personally prefer the Rehabilitation Act term “otherwise qualified,” over the ADAAA term “qualified,” because the former is more clearly a term of art. The court actually uses both terms interchangeably in its decision.

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