April 30, 2021

ADA Reasonable Accommodation, Reassignment & “Last Among Equals Status”

The Americans with Disabilities Act (ADA) generally covers employers with 15 or more employees. In addition to prohibiting discrimination against a qualified individual with a disability, it requires the employer to offer that individual a reasonable accommodation to perform the essential functions of the job.

But what if there is more than one reasonable accommodation that could be offered? Who gets to choose? Forever and a day, the U.S. EEOC has said that the employer gets to choose (see Q & A #3).  For the same period of time, the EEOC’s guidance has said that if an employee cannot be accommodated in the employee’s current job, and the employer has a vacant position for which the employee meet the minimum qualifications, the employer must or shall reassign  the employee into the vacant position, even if there is a more qualified candidate.

Now, here comes the spin.  What if the employee can be accommodated in the current position, but also qualifies for a vacant position?  May the employer still  unilaterally choose to reassign the employee?  The 4th U.S. Circuit Court of Appeals recently ruled, “No.”  The court explained the ADA’s reassignment rule as having, “last among equals status…employers should first consider those accommodations that would enable the employee to remain in his/her current position.” This also aligns with the EEOC’s guidance that, “reassignment is the reasonable accommodation of last resort.” And, if you are not yet convinced, this decision mirrors every other Circuit decision that has considered the issue.