by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
February 01, 2018
As we administer our ADA management services, we frequently get questions about the employer’s obligation to reassign an employee to a vacant position as an ADA accommodation. Some time ago we addressed reassignment as an accommodation under the ADA. We wrote:
When good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well: reassignment of a disabled employee to a vacant position. This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.
In that blog post we explained the EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he/she gets the job – he/she does not have to compete or be the best qualified candidate for the position.
Things have advanced a bit since that post was written and it is time for an update. The issue is still not nailed down in most jurisdictions – and the EEOC has not wavered in its position – but the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia) has held that in certain circumstances, an employee with a disability can be required to compete with other candidates for an open position. Although this decision came out several months ago, continued questions from our clients show that they still grapple with the issue.
The Facts. The employee, Leokadia Bryk, was a nurse in the psychiatric ward at St. Joseph’s Hospital in Florida. Due to a developing back problem, Bryk walked with a cane during her shifts. The hospital determined that use of the cane posed a risk as patients in the psychiatric ward might be able to use the cane as a weapon. Bryk was given 30 days to apply for other positions for which she was qualified. St. Joseph’s usual transfer rules required that an internal candidate could not apply for another position if the employee had not been in her current position for at least 6 months and had no final written warnings in her file. Bryk did not satisfy either of these requirements, but St. Joseph waived these rules to allow Bryk to apply for vacant positions. She applied for 3 positions but was not hired because she was not the best qualified candidate for any of the positions.
The Lesson. St. Joseph’s had a “best-qualified applicant” policy – meaning that they had a business policy and practice of hiring the best-qualified candidate for an open position. Relying on an earlier U.S. Supreme Court opinion, the 11th Circuit recognized that an employee’s proposed accommodation must be “reasonable in the run of cases.” The court then affirmatively stated that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA does not require mandatory reassignment:
As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. . . . [T]he ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position . . . [T]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities . . . [It] was never intended to turn nondiscrimination into discrimination against the non-disabled.
Lay of the Land. Other courts have addressed the issue of reassignment as an ADA accommodation. In Huber v. Wal-Mart Stores, Inc. (2007) the 8th Circuit came to the same conclusion as the 11th Circuit. The EEOC cites cases from the 7th, 10th, and D.C. Circuits in support of its position. Various district courts (the federal trial courts under the Circuit courts of appeals) in several states have tackled the issue with varying results.
Pings for Employers.
- Employers should not view the St. Joseph’s case as a complete victory. The federal courts of
appeals are still split on employers’ ADA reassignment obligations, and some haven’t addressed
the issue at all. It is important to receive legal guidance on the status of the issue where you
do business; it is likely to vary if you have employees in multiple states. And, if you require a
disabled employee to compete for an open position in any jurisdiction, you still might find
yourself wrangling with the EEOC.
- The St. Joseph’s decision rests heavily on the employer’s “best-qualified applicant” policy. Most
employers probably believe they have such a policy but now employers should memorialize
the policy in writing and train hiring managers to ensure it is followed in practice. It might be
possible to make occasional exceptions but be ready to explain those with business reasons
that justify the variation.
- Don’t be inflexible when dealing with the ADA. Even with a best-qualified policy and in the
11th Circuit, there still may be fact-specific situations that would make reassignment without
competition a reasonable accommodation.
- Take a lesson from the way St. Joseph’s handled this employee. Even though it enforced its
best-qualified policy, it bent other rules in its transfer and hiring policies as accommodations
to Bryk, enabling her to apply for jobs even though she did not satisfy the company’s rules.
Matrix can help!
Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at [email protected] to learn more about these services.