September 10, 2019

To Compete or Not to Compete: ADA & Reasonable Accommodation

You have an employee with a disability who can no longer perform the essential functions of his or her job.  You have a vacant position for which this employee meets the minimum qualifications.  May you require this employee to competitively bid on the position?  Must you place the employee in the vacant position even if you have a more qualified candidate?  The U.S. District Court for the District of Maryland recently answered “No” and “Yes,” respectively. The case was EEOC v. Manufacturers and Traders Trust Company d/b/a M&T BANK

The court looked to the language of the Americans with Disabilities Act (ADA). Under the statute, a reasonable accommodation “may include . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position, and more.

It also looked to other cases where one or more courts found, “the employer must . . . consider the feasibility of assigning the worker to a different job in which his disability will not be an impediment to full performance, and if the reassignment is feasible and does not require the employer to turn away a superior applicant, the reassignment is mandatory.” So when is non-competitive reassignment feasible? In this case, the court found that reassignment “seems reasonable on its face, i.e., ordinarily or in the run of cases…Defendant has not shown any “special” or “case specific[] circumstances” demonstrating undue hardship.”  This court found that rule did not apply here.

Why?  What if the employer had already given the employee FMLA leave? The court reminds us, “an employer’s obligation to provide a reasonable accommodation under the ADA is distinct from its obligation under the FMLA. The fact that an employee exhausts her FMLA leave does not relieve her employer from providing a reasonable accommodation.”

What if the employer had provided additional leave? “[P]roviding a generous leave policy does not eliminate the defendant’s obligation to comply with the ADA…[the employer] did not ‘bend over backwards’ or undertake ‘extraordinary measures’” for the employee.

Lessons learned? A reasonable accommodation may require more than what the law requires. It may also require doing more than what your policy provides.  Consider the business impact.  Be able to explain why placing an employee in a vacant position or providing any other requested accommodation would impose an undue hardship. Then, consult with your company’s legal counsel as a sounding board.