Accommodating Disabled Employees – Muddying the Waters

Accommodating disabled employees just got even more complicated. Most employers do not refuse to comply with the plethora of employment laws and regulations they’re subject to. Many instances of “noncompliance” are based on a good faith belief or reliance on an informed opinion as to the meaning of a regulation.  And sometimes it comes down to a difference of opinions published by the courts.

A recent example of the situation is EEOC v. United Airlines, Inc. the outcome of which will affect all employers.  The most affected will be employers within the boundaries of the Seventh Circuit.  The Seventh Circuit changed its opinion on disabled employee’s reassignments to vacant positions that accommodate the employee’s disability.  The results affect seniority systems because an individual employee’s disability may trump an established seniority system where employers fill vacancies on a seniority basis.

It is now established that an employer must conduct a two-part test when considering a disabled employee’s request for reassignment to a position as an accommodation, versus an employee’s request for assignment to that same position based on seniority.  And the “test” does not make this situation any easier.

The first step of the test would require an employer to see if the request for transfer is a reasonable request.  An employer can review the employee’s qualifications and if the employee is qualified then the burden shifts to the employer to review the transfer and determine whether the transfer would create an undue hardship under the particular circumstances of the case, or is contrary to a collective bargaining agreement.  But even if it creates an undue hardship, an employee may still have a claim if they can show there are special circumstances that warrant finding the accommodation transfer is reasonable based solely on the circumstances of that particular case.

Based on this case and similar cases from the 10th Circuit and the DC Circuit, employers would be well advised to review their policies and procedures addressing filling vacant positions within their respective organizations.  If a disabled employee requests a transfer to a vacant position as an accommodation, that request trumps a competitive process to fill vacancies.  This decision could have negative impact on seniority systems that aren’t part of a collective bargaining agreement.

Unfortunately, this further complicated a delicate issue for employers and employees attempting to work through the ADA maze.

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