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Understanding the ADA's 'Reassignment' Obligation
One of the most controversial questions since the passage of the Americans with Disabilities Act of 1990 (ADA) has been whether an employer must reassign an employee who can no longer perform his or her job because of a disability. After years of conflicting decisions and arguments, the answer is now easy ' yes. Virtually all federal courts have agreed with the EEOC that an employer must consider reassigning an employee in such circumstances. However, this raises a number of issues, such as: When should reassignment be considered? What positions must be considered for reassignment? Must an employer modify its seniority rules? And, must the disabled employee compete for the new position?
Although there are legitimate questions about the scope of an employer's reassignment obligation, some points are clear. First, reassignment is available only to employees, not to applicants. However, the EEOC has taken the position that 'probationary' employees may well be entitled to reassignment if they have been performing the job to the employer's satisfaction. Second, an employer does not have to bump any employee from a job in order to create a vacancy. Third, an employer does not have to promote an employee as a reassignment. Some courts have said this means that the employer does not need to promote someone from a part-time position to a full-time position, or from an hourly position to a salaried position. Fourth, an individual must only be reassigned to a job for which s/he is qualified (with an accommodation if necessary).
When Should Reassignment Be Considered?
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