20 Dec The ADA and Job Transfers
Written by: Don Benson, Esq.
On December 7, 2016, the Eleventh Circuit Court of Appeals found that a Hospital did not violate the Americans With Disabilities Act when it refused to allow a disabled employee to transfer to another, open position when the Hospital had better qualified candidates. EEOC v. St. Joseph’s Hospital, Inc.
The ADA protected employee had to compete with other qualified candidates. The ADA’s duty to reasonably accommodate her request to transfer meant that an employer must allow a disabled person to compete equally with the rest of the workers for a vacant position. The ADA does not require reassignment without competition for, or preferential treatment of, the disabled.
A nurse at the hospital developed stenosis and hip problems that required the use of a cane. Because she worked in the psychiatric section of the hospital, she was no longer qualified for her job because there was no safe way for her to perform her duties with a cane that could be used as a weapon by patients.
However, the story did not end there because she requested reassignment to three open positions at the Hospital. Even if she was not qualified for her prior job because of the cane, she was qualified for the open jobs and she maintained that the ADA requires a reasonable accommodation of her disability in the form a transfer to one of the open jobs.
Reassignment of a disabled individual to another open position may be a reasonable accommodation, but it will not always be a reasonable accommodation in every circumstance.
Employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies. Reassignment is not normally required as a reasonable accommodation under the ADA if reassignment violates work rules such as seniority systems or governing civil service rules, for example.
This case involved a policy that open transfers would only go to the best-qualified applicant. The Court found that, “Passing over the best-qualified job applicants… is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel.”
There is a two-step analysis under the ADA applied where the Employer rejects a request for reassignment to an open position based on a job rule. First, the employee must show that the accommodation is a type that is reasonable in the run of cases. Second, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances. [If the employee cannot carry his/her burden on the first step, the employee can still win by offering proof that an exception to the rule is warranted by special circumstances under the particular facts of the case.]
Although there is a split in the Circuits on this issue, employers in the Eleventh Circuit [ Fl., Ga., Al.] might gain protection against claims for ADA reasonable accommodation by adopting an express policy that transfers to open positions will only be provided to the best qualified applicant, and/or granted only after the employee has been in his/her prior job for a specific length of time, etc. Although every specific situation needs to be examined for whether an exception to the rule is required as an ADA reasonable accommodation, such rules are worth adopting to promote efficiencies, quality of services, etc. and guiding the analysis of what reasonable accommodation may be required under the ADA.