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Requirement or Suggestion? EEOC Rulings Suggest that Preferential Reassignment is a Requirement

Published:  October 2, 2017

Under the Americans with Disabilities Act employers are required to provide reasonable accommodations to employees who would otherwise be able to perform the essential job functions.   However, if the accommodation would impose undue hardship on the employer, then they are not required to provide that accommodation.   Reasonable accommodations can refer to a plethora of business actions, one of which explicitly stated in the ADA is “reassignment to a vacant position.”   It has long been held that allowing someone who would need a reasonable accommodation to interview and apply alongside those who don’t is a sufficient enough accommodation under the ADA.

However, the EEOC’s recent rulings suggest that this is nowhere near enough to comply with the ADA.  The EEOC holds the position that if an employee is no longer able to perform their job functions they are entitled to any vacant position for which they are qualified, with our without reasonable accommodations.  

This position has been echoed by many of the Circuits of Appeals Courts, and the First Circuit Court of Appeals (Massachusetts among other states) has recently declared in a footnote that if presented with a similar case, they will likely rule in the same manner as the other Circuits and the EEOC. 

What does this mean for employers?   Suppose you have a vacant position in your company and after many interviews you are down to two candidates you feel are perfect for the position.  As you comb over their respective credentials to determine who the best fit is, you find out that someone from a different department recently informed Human Resources of a disability and requires an accommodation. If they are able to perform the job requirements to a satisfactory degree, you may be required to tell your two dream candidates that the position has been filled.  If you don’t you may be exposing yourself to massive liabilities under the American with Disabilities Act.  

If you have any questions about the EEOC or other labor and employment matters, please contact the attorneys at Royal, P.C.

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