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Definition of reassign

transitive verb

Examples of reassign in a Sentence

These examples are programmatically compiled from various online sources to illustrate current usage of the word 'reassign.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples.

Word History

1611, in the meaning defined above

Dictionary Entries Near reassign

reassociative

Cite this Entry

“Reassign.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/reassign. Accessed 5 Mar. 2024.

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Summary of Reassignment

This summary of reassignment covers the following topics:

  • Learning About Reassignment
  • Definition of Reassignment
  • The Agency's Right to Reassign
  • Reassignment Without Regard to RIF Retention Standing
  • Separation After Declining Geographic Reassignment
  • Qualifications and Reassignment
  • Relocation Expense Allowances
  • Additional Information from the Agency
  • Additional Information from OPM

1. Learning About Reassignment

The reassignment regulations give an agency extensive flexibility in reassigning an employee to a different position.

This summary covers the procedures in the reassignment regulations. With this summary, employees, managers, union representatives, and others will have an overview of both the agency's and employees' rights in a reassignment situation.

The appropriate human resource office (HRO) in the agency can provide additional information on specific questions relating to reassignment policies, options, and entitlements.

2. Definition of Reassignment

The regulations published in section 335.102 of title 5, Code of Federal Regulations (5 CFR 335.102) cover reassignment of competitive service employees, while the regulations published in section 302.102(a) (5 CFR 302.102(a)) cover reassignment of excepted service employees.

Section 5 C.F.R. 210.102(b)(12) of the regulations defines reassignment as:

". . . a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion."

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3. The Agency's Right to Reassign

An agency may reassign an employee when:

The agency has a legitimate organizational reason for the reassignment; and

The vacant position is at the same grade, or rate of pay (i.e., if the movement is between pay systems such as from a General Schedule position to a Federal Wage System position), as the employee's present position.

The agency's right to direct reassignment includes the right to reassign an employee from a special rate position to a non-special rate position at the same grade, or to a position with less promotion potential than the present position. (Reassignment to a position with more promotion potential than the present position requires competition under the agency's merit staffing plan.) The position to which the agency reassigns an employee may be located in the same or a different geographic area (e.g., reassignment from Houston to Washington, DC).

4. Reassignment Without Regard to RIF Retention Standing

An agency may reassign an employee without regard to the employee's reduction in force retention standing, including an employee's veterans' preference status. A reassignment to a vacant position at the same grade is not a reduction in force action even if the agency abolishes the employee's former position

At its option, an agency may adopt a policy to select employees for reassignment on the basis of considerations such as retention standing, total service with the agency, length of time in a position or in the organization, etc. Again at its option, an agency may canvass its employees to determine whether an individual employee would prefer reassignment to a specific location, a new organization, and/or to a position with different duties and responsibilities.

5. Separation After Declining Geographic Reassignment

The agency must use the 5 CFR part 752 adverse action regulations when separating an employee who declines a directed reassignment to a position in a different geographic area.

An employee who is removed by adverse action for declining geographic relocation is potentially eligible for most of the benefits that are available to a displaced employee separated by reduction in force (e.g., intra- and interagency hiring priority, severance pay, discontinued service retirement, etc.).

An employee who declines reassignment to a position in the same geographic area as the present position (e.g., from an Atlanta position to a different Atlanta position) is not eligible for any career transition assistance or other benefits.

6. Qualifications and Reassignment

The agency's basic right to reassign an employee is based, in part, on the agency's determination that the employee is qualified for the position to which the employee will be reassigned.

An agency may also reassign an employee to a position if the agency modifies or waives qualifications for the vacant position, consistent with OPM's requirements for these actions.

7. Relocation Expense Allowances

An employee is generally eligible for relocation expense allowances for a directed reassignment that requires relocation to a different geographic area

The General Services Administration (GSA) publishes its Federal Travel Regulation (FTR) in 41 CFR subpart F. The complete FTR and other relocation-related information are available on GSA's website at  www.gsa.gov .

8. Additional Information from the Agency

The agency's human resources office (HRO) can provide both employees and managers with additional information on OPM's reassignment regulations. The HRO can also provide information on potential benefits, such as eligibility for:

  • Career transition assistance
  • Separation incentives (if available)
  • Rehiring selection priority
  • Severance pay
  • Unemployment compensation
  • Relocation allowances.

9. Additional Information from OPM

OPM provides additional restructuring information on the OPM website at  www.opm.gov .

Wake Forest Law Review

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Mandatory Reassignment Under the Americans With Disabilities Act: The Fourth Circuit Weighs In

reassignment form meaning

12 Wake Forest L. Rev. Online 1

Introduction

The Americans with Disabilities Act (“ADA” or “the Act”) [1] celebrated its thirtieth anniversary in 2020. [2]   The Act, which was signed into law by President George H.W. Bush, was enacted to eliminate discrimination against individuals with disabilities, especially in critical areas of life like employment. [3]   With the ADA’s passage came the promise of “full and equal access to civic, economic and social life for individuals with disabilities.” [4]   Employment discrimination against persons with disabilities persisted, however, and courts facilitated this discrimination through narrow readings of the statute. [5]   Though the Act was intended to provide broad protections to persons with disabilities, [6] it was limited by courts, and early litigation resulted in pro-defendant opinions. [7]   As a result, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), which broadened the definition of disability. [8]   Despite its maturity, as well as congressional efforts to create broader protections for persons with disabilities, [9] the ADA continues to create disagreement among courts regarding how far the protections of the Act stretch. [10]   Today, most of this disagreement centers on the ADA’s reasonable accommodation clause—a key provision of the Act. [11]

The Fourth Circuit is no exception as it too has contributed to this disagreement.  In Elledge v. Lowe’s Home Centers, LLC , [12] the court was asked to decide the scope of the reasonable accommodation clause.  The court addressed whether the ADA requires an employer to automatically reassign a disabled employee to a vacant position when that reassignment would conflict with the employer’s nondiscriminatory best-qualified hiring policy. [13]   Essentially, the court had to decide if the ADA requires an employer to fill a job vacancy with a less-qualified employee who has a disability even though the employer has a policy of hiring the best-qualified candidate for the position. [14]  Ultimately, the Fourth Circuit decided that the ADA does not require mandatory reassignment when an employer utilizes a best-qualified hiring policy. [15]

Mandatory reassignment requires courts to delve deep into the ADA’s statutory text and legislative history while also considering complex policy implications, [16] demonstrating why it is one of the most litigated accommodations within the ADA. [17]   Following the Elledge decision, there is now a split between five federal circuit courts, with the Fourth, Eighth, and Eleventh Circuits finding that the ADA does not require mandatory reassignment when an employer utilizes a most-qualified hiring policy to fill vacant positions, and the Seventh and Tenth Circuits finding that it does. [18]   Though the Fourth Circuit aligned with two other circuit courts, its holding in Elledge went too far, essentially precluding employees with disabilities from ever being reassigned to a vacant position when an employer utilizes a best-qualified hiring policy. [19]  

This Comment explores the complexity of the ADA’s reasonable accommodation clause and an employer’s duty to reassign. Part I discusses the relevant provisions of the ADA, specifically the reasonable accommodation and reassignment clauses. [20]   Part II explores the split between the federal circuit courts, as well as the United States Supreme Court’s decision in U.S. Airways, Inc. v. Barnett , [21] which establishes a framework for ADA reassignment cases. [22]   Additionally, Part II details the facts of the case in the Fourth Circuit’s Elledge decision and explains the court’s holding. [23]   Part III analyzes the Elledge decision and explains how the Fourth Circuit’s heavy reliance on U.S. Airways was misguided and how it limited the rights of disabled employees further than the Supreme Court or the other circuits ever intended. [24]

Finally, Part IV argues that finding reassignment as a reasonable accommodation, despite an employer’s best-qualified hiring policy, better suits the provisions of the ADA for three reasons. [25]   First, the text and legislative history of the ADA support finding reassignment as a reasonable accommodation when there are no other accommodations an employer can make to employ their employees with disabilities. [26]   Second, reassignment maintains the ADA’s burden-shifting test, which the Supreme Court outlines in U.S. Airways , and allows the fact-intensive inquiry as to whether an accommodation is reasonable to stay with the jury. [27]   Lastly, the ADA’s reassignment clause sufficiently protects employers as to not make reassignment unreasonable. [28]

I. The Americans with Disabilities Act and The Reasonable Accommodation Clause

The ADA prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.” [29]   A qualified individual under the ADA is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” [30]   An individual’s essential job functions are the “fundamental job duties of the employment position.” [31]   Thus, the ADA requires employers to identify the essential functions of the job and then determine if the employee can perform them with a reasonable accommodation. [32]   If the employer determines the employee can perform the essential functions of the job with an accommodation, the employer’s failure to provide such an accommodation means the employer has engaged in a form of unlawful discrimination. [33]   The only way for an employer to overcome the reasonable accommodation requirement is by demonstrating that such a requirement would impose an undue hardship on the operation of its business. [34]

The ADA fails to provide a definition for what constitutes a reasonable accommodation, [35] but it does provide employers with a list of possibilities, one of them being reassignment of the employee to a vacant position. [36]   Despite the inclusion of reassignment in the statute, reassignment is intended to be an accommodation of last resort, requiring employers to reassign an employee with a disability only when there is no other accommodation that can keep the employee employed or when all other accommodations would pose an undue hardship on the employer. [37]   If keeping the employee in their current position is not possible, however, then the door to reassignment opens and must be considered. [38]   Since reassignment to a vacant position is specifically listed within the statutory text of the ADA, proponents of mandatory reassignment argue that the Act mandates it so long as the disabled employee is qualified. [39]   On the other hand, opponents of mandatory reassignment argue that because the ADA uses permissive language, it cannot require mandatory reassignment; these opponents believe Congress simply listed reassignment as something that “may” qualify as a reasonable accommodation. [40]   This permissive language has undoubtedly contributed to the controversy surrounding an employer’s duty to reassign; [41] the issue becomes more difficult when an employer normally fills job vacancies using a best-qualified hiring policy. 

II. The Circuit Courts Split

During the last two decades, federal circuit courts have disagreed as to whether the ADA requires mandatory job reassignment, which would require an employer to reassign a qualified disabled employee to a vacant position even if there is a better qualified individual. [42]   The Supreme Court has not addressed this specific question, [43] but it did address whether mandatory reassignment is reasonable when an employer utilizes a different nondiscriminatory hiring policy, specifically a seniority system, in U.S. Airways . [44]   Though not directly on point, lower courts have relied on U.S. Airways to support their position on reassignment when an employer has a best-qualified hiring policy in place. [45]   Unfortunately, the Supreme Court’s guidance has only divided the lower courts further, resulting in inconsistent applications of the law. [46]

A. The Supreme Court’s Decision in U.S. Airways, Inc. v. Barnett

In U.S. Airways , the Court was faced with the issue of whether an employer’s nondiscriminatory seniority system trumps a disabled employee’s accommodation request for a vacant position. [47]   The majority found reassignment to be unreasonable when it violates the rules of a seniority system because of the importance seniority has to employee-management relations. [48]   As the Court noted, seniority systems create “expectations of fair, uniform treatment” that would be undermined if a more junior employee were automatically reassigned to the vacancy. [49]   The effect of U.S. Airways is that employers no longer need to prove an undue hardship resulting from reassignment on a case-by-case basis—reassignment is presumed unreasonable if it violates an employer’s seniority system. [50]  

In U.S. Airways , reassignment was held to be unreasonable. [51]   But the holding was not a complete blow to employees with disabilities.  In its opinion, the Court acknowledged that the ADA requires employers to treat an employee with a disability preferentially , regardless of an employer’s disability-neutral rule. [52]   The Court emphasized that if it were not for the employer’s seniority system, an employee’s reassignment request would normally be reasonable within the meaning of the statute. [53]   Additionally, the Court held that employees may show special circumstances, based on the particular facts of their case, that warrant a finding that reassignment is reasonable despite an employer’s seniority system. [54]   Since U.S. Airways , a collection of courts have considered whether other nondiscriminatory policies, such as a best-qualified hiring policy, would make reassignment unreasonable. [55]   As a result, the split between the circuit courts on best-qualified hiring policies was borne.

B. The Disagreement Between the Circuit Courts

Before the Fourth Circuit’s decision, the Eighth and Eleventh Circuits found mandatory reassignment to be unreasonable when an employer utilized a best-qualified hiring policy, [56] and the Seventh and the Tenth Circuits found it reasonable. [57]  

  • Circuit Courts Finding Mandatory Reassignment Unreasonable

The Eleventh and Eighth Circuits held that the ADA does not provide disabled employees preferential treatment. [58]   In these circuits, employers simply must identify to the employee that a vacancy exists and then permit the employee to apply equally amongst other applicants; the employer is not required to automatically reassign the employee to the vacant position. [59]   These circuits find the ADA’s permissive language to be indicative that Congress did not intend for reassignment to be required in all circumstances. [60]   Holding otherwise would “convert a nondiscrimination statute into a mandatory preference statute” that would be inconsistent with the nondiscriminatory purpose of the ADA. [61]   Additionally, these circuits rely on the Supreme Court’s decision in U.S. Airways to support their stance that a best-qualified policy automatically makes mandatory reassignment unreasonable. [62]   Since employers operate their businesses for profit, it would be unreasonable for an employer to pass over the best-qualified job applicant in favor of an employee with a disability because it would hinder job efficiency and good performance. [63]  

  • Circuit Courts Finding Mandatory Reassignment Reasonable

The Seventh and Tenth Circuits find themselves on the opposite side, interpreting the ADA to require mandatory reassignment despite an employer’s nondiscriminatory best-qualified hiring policy. [64]   These circuits believe that allowing an employee to compete for a job open to the public is not an accommodation at all. [65]   For them, the ADA requires more; its “reference to reassignment would be redundant if permission to apply were all it meant.” [66]   Thus, an accommodation requires an active effort on the part of the employer—simply allowing an employee to compete does not fulfill this obligation. [67]

Like the Eighth and Eleventh Circuits, which rely on the ADA’s language to support their position, the Seventh and Tenth Circuits do as well.  The ADA defines reasonable accommodation to include “reassignment to a vacant position” rather than “consideration of reassignment to a vacant position.” [68]   Thus, these circuits rely on the ADA’s language to argue that if consideration of an applicant were all that was required by the ADA, then employers

could adopt a policy in favor of hiring the most qualified candidate such that a disabled employees could never rely on reassignment to establish the existence of a reasonable accommodation . . . . Such a result would effectively and improperly read ‘reassignment to a vacant position’ out of the ADA’s definition of ‘reasonable accommodation.’ [69]

Additionally, the Seventh and Tenth Circuits gave considerable deference to guidelines issued by the Equal Employment Opportunity Commission (“EEOC”), which Congress authorized to implement the ADA. 70

These circuits deferred to the EEOC’s interpretation of the ADA, which views the ADA as requiring mandatory reassignment when no other accommodations can accommodate the employee with a disability. 71   “Reassignment means that the employee gets the vacant position if s/he is qualified for it.” 72   In contrast to the Seventh and Tenth Circuits’ consideration of the EEOC’s interpretation, and despite the EEOC’s clear belief that employers are required to reassign employees with disabilities as an accommodation of last resort, the Eighth and Eleventh Circuits gave no consideration to the EEOC’s interpretation of the statute in their opinions. 73

The Seventh Circuit, prior to the Supreme Court’s decision in U.S. Airways , originally held that employers utilizing best-qualified hiring policies were not required to reassign employees with disabilities to vacant positions if there was a more qualified candidate seeking the same position. 74   But the court reversed its decision in light of the Supreme Court’s holding in U.S. Airways. 75   The Seventh Circuit found U.S. Airways as support for mandatory reassignment, despite an employer’s best-qualified hiring policy. 76   The court began by stating that the decision in U.S. Airways was a very narrow, fact-specific exception limited to cases where an employer uses a seniority system to fill job vacancies. 77   It then distinguished a seniority system, which involves the rights of other employees, from a best-qualified policy, which does not implicate the rights of others. 78   By distinguishing the two types of hiring policies, the Seventh Circuit explained why the holding in U.S. Airways does not survive in cases involving best-qualified policies. 79   Thus, while the Eighth and Eleventh Circuits interpreted the Supreme Court’s decision in U.S. Airways as support for the view that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy, 80 the Seventh Circuit found the opposite, going so far as to reverse its own precedent. 81  

C. The Fourth Circuit Weighs In

This past year, the Fourth Circuit in Elledge broke the even split between the federal circuit courts when it joined the Eighth and Eleventh Circuits by holding that employees with disabilities are not entitled to special priority for reassignment. 82   The holding is significant because it conflicts with district court decisions made within the Fourth Circuit. 83   But more importantly, it is significant because it goes beyond the decisions of its sister circuits and the Supreme Court by foreclosing the possibility of reassignment under any circumstance when an employer utilizes a best-qualified hiring policy. 84

Chuck Elledge was an employee of Lowe’s Home Center (“Lowe’s”) and served as the company’s Market Director of Stores (“MDS”) for almost a decade—that is, until he began experiencing problems with his knee. 85   After several surgeries, Elledge’s doctor restricted his walking to no more than four hours a day and his workday to no more than eight hours. 86   These restrictions conflicted with the MDS position, which required Elledge to walk the floors he supervised and work over forty hours a week. 87   Lowe’s was a sympathetic employer; it accommodated Elledge’s disability by temporarily limiting his working hours and offering him the use of a motorized scooter to ease the strain on his knee during store visits. 88   Elledge refused, however, to use the scooter 89 and accommodated himself by assigning subordinates to drive him to different store locations. 90   When it was determined that Elledge would need reduced hours indefinitely, Lowe’s found that Elledge could not remain in his present position and discussed other career opportunities with him, including a less demanding and lower-paying position. 91   Elledge rejected the offer from Lowe’s and applied for two lateral director positions. 92   When he did not receive the lateral positions, Elledge brought suit against Lowe’s for violating its obligations under the ADA by removing him from the MDS role and refusing to automatically reassign him to either of the other two vacant director positions. 93   Lowe’s’ maintained that it did not violate the ADA for failing to reassign Elledge because it selected its candidates based on its “succession planning and best-qualified hiring policies.” 94

The Fourth Circuit began its inquiry by determining whether Elledge was a qualified individual within the meaning of the ADA, meaning that he could perform the essential functions of the job with or without reasonable accommodation. 95   Because the MDS position required Elledge to walk sixty-six percent of working hours and to work in excess of eight hours a day, the court concluded he could not perform the essential functions of the job. 96   But the court still had to confront whether Lowe’s was required to automatically reassign Elledge to a vacant director position that did not require as much walking, even though Lowe’s normally would fill that vacancy with whom it believed to be the best-qualified candidate. 97   The court began by emphasizing that reassignment is an accommodation of last resort because it protects not just the disabled employee but employers and other employees as well. 98   Next, the court relied on the Supreme Court’s decision in U.S. Airways where the Supreme Court held that the ADA does not “require employers to construct preferential accommodations.” 99   It requires only that “preferential treatment be extended as necessary to provide [employees with disabilities] with the same opportunities as their non-disabled colleagues.” 100   The Fourth Circuit interpreted this as requiring employers to simply allow disabled employees to compete for vacancies equally with other candidates. 101  

The court next highlighted how the Supreme Court identified “the value of stability in employee expectations” as the most important reason for rejecting reassignment when the employer uses a seniority system. 102   The court equated Lowe’s’ merit-based system— which had an “Enterprise Succession Management Process” nested within it—to a seniority system. 103  Like in U.S. Airways , the Elledge court found that the policy created employee expectations and that in the “run of cases,” reassignment in contravention of such a policy would be unreasonable. 104   The court’s heavy reliance on U.S. Airways resulted in Lowe’s not having to reassign its long-time employee and the subsequent termination of Elledge from his employment. 105

III.  Why the Fourth Circuit’s Decision Goes Too Far

The Fourth Circuit was right to conclude that Lowe’s was not required to reassign Elledge to a vacant position based on the specific facts of the case before it.  The court should not, however, have foreclosed the possibility of reassignment for future disabled employees whose last chance of employment at their company truly depends on reassignment.  As the Fourth Circuit noted, reassignment is an accommodation of last resort and is only required when no other accommodation can keep the employee with a disability employed or when all other accommodations would pose an undue hardship on the employer. 106   Here, Lowe’s extended a reasonable accommodation to Elledge; it provided him the use of a motorized scooter so he could move across the floors without straining his knee. 107   Thus, Lowe’s fulfilled its obligation under the ADA by providing Elledge an accommodation that could keep him in his current position.  But Elledge chose not to accept this accommodation and instead created his own accommodation without the approval of his employer. 108   While Elledge’s self-created accommodation allowed him to perform his job, the ADA does not require employers to accommodate employees with the accommodation of their choosing, 109 especially when such an accommodation creates extra work for other employees. 110   As the court noted, “Lowe’s made reasonable, sensitive attempts to accommodate an indisputably valued employee in his present position,” but Elledge undermined his case by refusing these accommodations and demanding others. 111

Additionally, Lowe’s had a unique best-qualified hiring policy, which the court acknowledged as special; 112 the Fourth Circuit should not have interpreted this policy as if it were a typical best-qualified hiring policy.  Within its best-qualified system, Lowe’s nested an “Enterprise Succession Management Process,” which it used to prepare its employees for promotion into the heightened responsibilities of the department’s director-level positions. 113   It was specifically used to promote talent interdepartmentally and provided lower-level employees with special training to prepare them for directorship positions. 114   This special system arguably creates the employee expectations at issue in U.S. Airways because Lowe’s actively trained employees to prepare them for directorship positions were they to open up. 115   Thus, the Fourth Circuit’s primary justification for rejecting mandatory reassignment in light of the best-qualified hiring policy was because of the impact it would have on the rights of other employees, which was the “most important” reason held by the Supreme Court in U.S. Airways . 116   For this reason, the court found this special kind of best-qualified system fell squarely within the ambit of U.S. Airways . 117

The succession system built into the best-qualified system in Elledge was unique and unlike typical best-qualified hiring policies that do not disrupt the rights of other employees. 118   Typically, a best-qualified system does not disrupt employee expectations of fair and uniform treatment because the most-qualified applicant never has a right to the position to begin with. 119   This differs from a seniority system where employees have an objective way of knowing whether they are next in line for a vacant position. 120   When an employer utilizes a best-qualified hiring policy, applicants have no knowledge of whether they are the best-qualified or not. 121   Therefore, there are no preconceived expectations of job entitlement. 122   Only the employer is impacted when the most-qualified applicant is passed over for a job vacancy by a disabled employee. 123

Additionally, an exception to reassignment for seniority systems does not create the problems that would arise if the same exception were applied to best-qualified hiring policies.  Seniority systems provide an objective way of deciding which employee receives the vacant position; the employer simply determines who the most senior employee is. 124   This contrasts with a best-qualified hiring policy where the employer must use a subjective analysis to determine who the “best” candidate is. 125   This subjectivity allows discrimination against employees with disabilities to go undetected because there is no objective way to determine who the employer believes is the “best.”  This distinction is notable because the Supreme Court was not faced with the threat of undetectable discrimination when it decided to exempt seniority systems from the case-by-case inquiry of whether reassignment creates an undue hardship on the employer. 126

The differences between a seniority system and best-qualified hiring policy are profound.  Because the Fourth Circuit found the policy in Elledge to resemble that of a seniority system, 127 it should not have foreclosed the possibility of reassignment in lieu of an employer’s best-qualified hiring policy when that was not the precise policy at issue.  A better outcome would have left open the possibility of reassignment and simply found it to create an undue hardship based on those facts, given that Lowe’s had a succession system built into its best-qualified hiring policy, which created employee expectations within the company. 128

The Fourth Circuit’s decision ultimately aligned with the Eighth and Eleventh Circuits’ decisions, which the Fourth Circuit referenced as support for its position. 129   But, while the other circuits, as well as the Supreme Court, left the door to reassignment cracked open for disabled employees, the Fourth Circuit’s decision shut it closed.  In U.S. Airways , the Supreme Court held that there may be special circumstances that warrant a finding that, despite the presence of a seniority system, the requested reassignment is reasonable on the particular facts of the case. 130   The Eleventh Circuit agreed, leaving open the possibility of reassignment despite an employer’s best-qualified hiring policy. 131   But the Fourth Circuit’s decision makes no mention of such a possibility, essentially precluding a disabled employee from ever being reassigned to a vacant position when its employer utilizes a best-qualified hiring policy.  This critical omission could result in cases being disposed of prematurely at the summary judgment stage without affording employees the opportunity to prove that the facts of their case warrant reassignment.

IV. Mandatory Reassignment is Consistent with the Provisions of the ADA

The Fourth Circuit’s evidently pro-employer decision leaves employees with disabilities without the opportunity to present to a court why the ADA requires their employer to reassign them to a vacant position, affording them the right to remain employed at their place of employment.  Such a decision goes against the spirit of the ADA and Congress’ vision when it enacted the statute.  Until the Supreme Court hears the precise issue, this Comment proposes that courts interpret the ADA as requiring mandatory reassignment to a vacant position when no other accommodations are available, despite an employer’s nondiscriminatory best-hiring policy.  Such a result better suits the provisions of the ADA.

A. The Text and Legislative History of the ADA Support Mandatory Reassignment

Congress enacted the ADA to protect persons with disabilities from discrimination in employment; 132 it explicitly chose to include reassignment to a vacant position as a way to achieve this outcome. 133   The provisions of the ADA are meant to be interpreted liberally in favor of the protected class. 134   When the ADA was first enacted, and the courts narrowly interpreted the definition of what it meant to be disabled, Congress amended the statute to make it easier for individuals with disabilities to qualify for protections under the ADA. 135   Congress’s initiative to amend the statute evidences its intent that the provisions of the ADA, including the reassignment clause, be construed broadly.  The congressional intent for mandatory reassignment is further evidenced by Congress’s inclusion of reassignment within the statute despite its absence in the Rehabilitation Act, which served as the framework for the ADA. 136   During the ADA’s legislation, legislators recognized the importance of reassignment by noting that “transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker.” 137   The emphasis on reassignment during these various stages of the statute’s life demonstrate Congress’s intent for reassignment to be used by employers as a way to keep employees with disabilities employed. 

While Congress’s choice of the words “may include” before the list of possible accommodations is permissive, this permissive language can be reconciled with an employer’s duty to reassign. 138   The use of the word “may” before the list of accommodations is simply to indicate that an employer must perform an individualized analysis when determining which accommodation is most appropriate for the employee’s disability and essential job responsibilities. 139   It is “[not] an opportunity [to exchange] a ‘best qualified” standard into the word ‘reasonable.’“ 140   The statutory text of the ADA only calls for the disabled employee to be qualified for the position they wish to retain or seek; it does not require the employee with a disability to be the best-qualified candidate. 141   To read the statute otherwise would require courts to judicially amend “the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’” 142   If Congress had wanted to protect most-qualified individuals, it could have stated that employers are not required to pass over more qualified candidates. 143

The purpose and spirit of the ADA supports the need for mandatory reassignment.  The ADA was enacted after Congress realized that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis.” 144   Allowing an exception to reassignment due to an employer’s best-qualified-hiring policy would provide employers with an easy and undetectable avenue to discriminate against individuals with disabilities.  Congress explicitly acknowledged that prejudices against people with disabilities will prevent them from competing on an equal basis with those who do not have disabilities. 145   As such, the argument that the ADA simply requires disabled employees to compete for job vacancies is unwarranted, especially in light of the Supreme Court’s acknowledgement that the ADA requires affirmative conduct and preferential treatment. 146   Thus, reassignment without competition is consistent with the plain meaning of the statute, its legislative history, and the Supreme Court’s interpretation of the ADA.

A hiring policy which uses an employer’s subjective determination on the relative strength of different applicants would allow bias and prejudice to influence the employer’s ultimate hiring decision.  In 2019, there were over twenty-four thousand ADA claims charged by the EEOC, 147 and the unemployment rate for employees with disabilities is nearly twice that of nondisabled workers. 148   With these numbers in mind, it is not surprising that in a study where mock job applications were sent to employers, applicants who disclosed disabilities received twenty-six percent fewer expressions of employer interests than those applicants who reported no disability. 149   These statistics support the position that reassignment to a vacant position should be mandatory because discrimination against persons with disabilities continues to persist today. 150   Since reassignment is the accommodation of last resort, it is often the last chance for an employee with a disability to remain employed. 151   The consequences for the passed over “best-qualified” candidate are not nearly as severe; they simply remain in their current position while the opportunity to move into another position is deferred rather than lost. 152   Because reassignment is the last saving grace to keep the employee employed, it should be read as a mandatory requirement to properly carry out the ADA’s purpose of ensuring the “full participation, independent living, and economic self-sufficiency” of individuals with disabilities. 1 53 

B. Burden-Shifting Test and Fact-Intensive Inquiry

Rather than a per se rule that precludes reassignment in every circumstance when an employer utilizes a best-qualified hiring policy, courts should find reassignment as being generally reasonable, then allow employers to establish why reassignment would create an undue hardship given the specific facts of their case.  Such an approach is consistent with the burden-shifting test framed by the Supreme Court in U.S. Airways. 154   Under this framework, the employee with a disability must first prove that an accommodation is reasonable on its face. 155   If “the employee cannot show the accommodation is reasonable ‘in the run of cases,’” then summary judgment against the plaintiff-employee is appropriate. 15 6  It is already established that reassignment is generally a reasonable accommodation in ADA cases; 157 therefore, the burden is on the employer to establish special case-specific reasons demonstrating why reassignment would cause them an undue hardship. 158

Following the Supreme Court’s framework on a case-by-case basis better follows the provisions of the ADA than a rule precluding reassignment when an employer has a best-qualified policy because reasonable accommodation requests and undue hardship defenses are fact-intensive inquiries that are meant to be considered on a case-by-case basis. 159   A per se rule outwardly establishing reassignment as unreasonable when an employer has a best-qualified policy would prematurely dispose of cases at the summary judgment stage, denying employees with disabilities from presenting their cases to a jury and demonstrating why the specific facts of their case warrant reassignment.  More importantly, if failure to reassign claims are prematurely disposed of, then employers may easily hide intentional discrimination in the name of hiring a “better-qualified” individual.  The need for these cases to reach a jury is imperative given that discrimination may be easily covered up by an employer’s justification of hiring the “best-qualified” candidate.  The jury should be charged with deciding whether the employer’s choice for the vacant position was actually the better-qualified individual or whether the “employer consciously selected a less-qualified candidate––something that employers do not usually do, unless some other strong consideration, such as discrimination, enter[ed] into the picture.” 160  

Rather than shutting the door on reassignment, a better approach would require employers to demonstrate why reassignment is unreasonable given their business circumstances.  Under this approach, an employee can survive a motion for summary judgment if the employer fails to reassign the employee to a vacant position.  A jury can then decide whether (1) a vacant position existed; (2) the employee was qualified for the vacant position; and (3) reassignment would have caused the employer undue hardship. 161   This approach is consistent with the Supreme Court’s framework in U.S. Airways , allows employees with disabilities to challenge their employer’s determination of their qualifications, and retains the jury’s role in these fact-intensive inquiries.

C. The ADA Sufficiently Protects Employers from Any Potential Abuse by the Reassignment Accommodation

Employers are naturally hesitant of a law that would require them to reassign employees to positions they were not hired for.  A per se rule precluding reassignment when an employer utilizes a best-qualified hiring policy is unnecessary, however, because the ADA already provides employers with sufficient statutory protections. 162   To begin, reassignment is the accommodation of last resort, meaning that employers are only required to consider reassignment when no other accommodation is available or when any available accommodation would create an undue hardship on their business. 163   The ADA’s last resort status protects employers by requiring employers and employees to consider all other possible accommodations before reassignment becomes a possibility.

The ADA only requires employers to accommodate disabled employees if the employee can first prove they are qualified, meaning they can perform the essential functions of the job. 164   When considering reassignment to a vacant position, the employee must prove they can perform the essential functions of the job they are seeking. 165   This qualification protects the employer and allows them to deny reassignment if the employee is not qualified for the vacant position.  Further, an employer does not need to create a vacancy for the employee with a disability; reassignment is only necessary when there is already a vacancy in place. 166   This protects employers from potential backlash from other employees whose positions might be compromised if the employer were forced to create job vacancies.  It also serves as a financial protection since employers will not need to create a new position and hire an extra employee.  Additionally, the employer has the right to decide which vacant job position is to be offered to the employee; 167 the employee does not have the right to decide, and the reassignment need not involve a promotion. 168

Finally, the employer is always free to show that reassignment would create an undue hardship on their business given the particular facts of their case. 169   As indicated in Elledge , there are circumstances where reassignment would prove an undue hardship on an employer who uses a best-qualified hiring policy. 170   This defense protects employers who find themselves in situations where reassignment may affect the rights of other employees or cause other hardships for the employer. 171   As such, the provisions of the ADA sufficiently protect employers from potential abuse.  The Act’s limitations mean it will be used infrequently, reserving its protections for those special circumstances where employees with disabilities are left with no other means to remain employed.

The split between the federal circuit courts with respect to an employer’s duty to reassign has resulted in inconsistent applications of the law, leaving both employees and employers confused as to their rights and obligations under the ADA.  The Supreme Court failed to resolve the ambiguity involving an employer’s duty to reassign; it only complicated the inquiry as evidenced by the conflicting interpretations of U.S. Airways used by the lower courts.  As a result, in some states, a qualified person with a disability will automatically be reassigned to a vacant position as a form of reasonable accommodation.  In others, the person with a disability must either compete for the vacant position amongst other applicants and potentially still not receive the position or leave their job and face unemployment. 

When Congress enacted the ADA, it realized the prejudice that people with disabilities face in employment; those prejudices are still very much alive today.  In order to carry out the Act’s main purpose, which is to allow more individuals with disabilities to enter the workplace and remain employed, reassignment should be required by employers, even if there is a better-qualified candidate for the vacancy.  Until the Supreme Court hears the issue, courts should require employers to reassign their employees with disabilities when no other accommodation can keep them employed.  Once an employee with a disability has established that they are otherwise qualified for the position, the burden should shift to the employer to demonstrate why reassignment would cause them an undue hardship.  To read the provisions of the ADA otherwise would allow employers to always deny people with disabilities vacant positions in the name of a best-qualified hiring policy; such a rule would essentially remove the reassignment clause from the list of accommodations written in the ADA.

Belen Wilson *

      [1].   Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101­–12213.

      [2].   Anniversary of Americans with Disabilities Act: July 26, 2020 , U.S. Census Bureau: Facts & Features (June 17, 2020), https://www.census.gov/newsroom/facts-for-features/2020/disabilities-act.html .

      [3] .   See 42 U.S.C. § 1210(b)(1); see also id . § 1210(a)(3) (finding that “discrimination against individuals with disabilities persists in such critical areas as employment”); Stephen F. Befort & Tracey Holmes Donesky, Reassignment Under the Americans with Disabilities Act: Reasonable Accommodation, Affirmative Action, or Both? , 57 Wash. & Lee L. Rev. 1045, 1046 (2000) (stating that one of Congress’s principal reasons for enacting the ADA was to help disabled people enter and stay in the workplace).

      [4].   U.S. Dep’t of Just., ADA Series Commemorates Upcoming Anniversary (2017), https://www.justice.gov/archives/opa/blog/ada-series-commemorates-upcoming-anniversary . 

      [5] .   See Lawrence D. Rosenthal, Most-Qualified-Applicant Hiring Policies or Automatic Reassignment for Employees with Disabilities? Still a Conundrum Almost Thirty Years After the Americans with Disabilities Act’s Enactment , 70 Baylor L. Rev. 715, 716 (2018) (finding that much of the early litigation concerning the ADA resulted in many pro-defendant opinions to the detriment of disabled employees); see also Stephen F. Befort, The Most Difficult ADA Reasonable Accommodation Issues: Reassignment and Leave of Absence , 37 Wake Forest L. Rev. 439, 440 (2002) (stating that during the ADA’s early years there was heavy litigation concerning the scope of the “disability” definition); Civil Rights Div., U.S. Dep’t of Just., Questions and Answers about the Department of Justice’s Notice of Proposed Rulemaking to Implement the Americans with Disabilities Act Amendments Act of 2008 (Jan. 30, 2014), https://www.ada.gov/nprm_adaaa/adaaa-nprm-qa.htm (stating that amendments to the ADA were passed as a result of Supreme Court decisions that narrowly interpreted the ADA).

      [6].   42 U.S.C. § 12101(b).

      [7].   See generally Rosenthal, supra note 5 (finding that early litigation concerning the ADA resulted in many pro-defendant opinions).

      [8] .   Id . at 716–17; see also ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553.  The “Findings and Purposes” section of the ADAAA states that the amendments are a direct response to some Supreme Court decisions, which narrowly interpreted the ADA.   See id. at 3554.

      [9] .   See Rosenthal, supra note 5, at 716–17 (explaining that the ADAAA was passed to make the ADA more helpful for individuals with disabilities as a result of too many pro-defendant court opinions).

     [10] .   See, e.g. , John E. Murray & Christopher J. Murray, Enabling the Disabled: Reassignment and the ADA , 83 Marq. L. Rev. 721, 722 (2000) (stating that courts disagree as to the scope and parameter of an employer’s duty to accommodate its disabled employees, specifically through reassignment). 

     [11] .   See generally Befort, supra note 5 (stating that the attention of courts has shifted to the reasonable accommodation clause); Michael Creta, Note, The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments , 55 B.C. L. Rev. 1693, 1697 (2014).  The reasonable accommodation clause includes the reassignment clause, which lists reassignment to a vacant position as a type of reasonable accommodation.  42 U.S.C. § 12111(9).

     [12].   979 F.3d 1004 (4th Cir. 2020).

     [13] .   See id. at 1007–09.  A most-qualified (or best-qualified) hiring policy is a policy in which the employer hires the most-qualified applicant for a vacant position.  See id . at 1016.

     [14] .   Id .

     [15].   Id. at 1014–15.

     [16] .   See Stephen F. Befort, Reasonable Accommodation and Reassignment Under the Americans with Disabilities Act: Answers, Questions and Suggested Solutions After U.S. Airways, Inc. v. Barnett, 45 Ariz. L. Rev. 931, 944 (2003) (“Of all the accommodations listed in the ADA, the reassignment accommodation has proven to be the most difficult to apply.”).

     [17] .   See id. (stating that reassignments have generated more litigation than any other reasonable accommodation).

     [18] .   Compare Elledge , 979 F.3d at 1016–18 (finding mandatory reassignment to be unreasonable when an employer utilizes a best-qualified hiring policy), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346–47 (11th Cir. 2016) (same), and Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (same), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (finding that the ADA mandates reassignment to another position when there is no other reasonable accommodation the employer can make), and Smith v. Midland Brake, Inc., 180 F.3d 1154, 1181, 1183 (10th Cir. 1999) (same).

     [19] .   See, e.g. , Elledge , 979 F.3d at 1018 (“In order to prove a prima facia case that a removal violated the ADEA, [a plaintiff] must show inter alia that he was qualified for his job.”).   See also discussion infra Part III.

     [20] .   See infra Part I.

     [21].   535 U.S. 391 (2002).

     [22] .   See infra Part II.

     [23] .   See infra Part II.C.

     [24] .   See infra Part III.

     [25] .   See infra Part IV.

     [26] .   See infra Part IV.A.

     [27] .   See infra Part IV.B.

     [28] .   See infra Part IV.C.

     [29].   42 U.S.C. § 12112(a).

     [30] .   Id. § 12111(8).

     [31].   29 C.F.R. § 1630.2(n)(1) (2021).

     [32] .   See Creta, supra note 11, at 1702 (explaining how the ADA requires employers to engage in a two-step inquiry); Befort & Holmes Donesky, supra note 3, at 1051 (same).

     [33].   42 U.S.C. § 12112(b)(5)(A) (defining discrimination as the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability”).

     [34] .   Id.   An undue hardship is an “action requiring significant difficulty or expense.”  Id. § 12111(10)(A).

     [35] .   See Thomas F. O’Neil III & Kenneth M. Reiss, Reassigning Disabled Employees Under the ADA: Preferences Under the Guise of Equality? , 17 Lab. Law. 347, 349 (2001) (stating that the statute “provides no guidance whatsoever in determining whether a certain accommodation is reasonable”).

     [36] .   See 42 U.S.C. § 12111(9)(B).

     [37] .   EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada .

     [38] .    Id.

     [39] .    See, e.g. , Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [40] .   See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“The ADA does not say or imply that reassignment is always reasonable.  To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [41] .   See, e.g. , Court Holds ADA Does Not Require Reassignment Without Compensation , Shawe Rosenthal LLP (Dec. 31, 2016), https://shawe.com/articles/court-holds-ada-does-not-require-reassignment-without-competition/ .

     [42] .   See St. Joseph’s Hosp. , 842 F.3d at 1345 (holding that reassignment is not mandatory under the ADA). But cf. Smith , 180 F.3d at 1165 (holding that reassignment is mandatory).

     [43].   In 2007 the Supreme Court agreed to address whether reassignment would be reasonable in the context of most-qualified hiring systems, but the parties settled the case prior to oral argument rendering it moot.  See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007).

     [44] .   See U.S. Airways, Inc, v. Barnett, 535 U.S. 391, 392 (2002).

     [45] .   See, e.g. , St. Joseph’s Hosp ., 842 F.3d at 1345.

     [46] .   Compare Huber , 486 F.3d at 483 (finding that the Supreme Court’s decision in U.S. Airways bolstered its decision that reassignment is unreasonable when an employer utilizes a best-qualified hiring policy), with EEOC v. United Airlines, Inc., 693 F.3d 760, 764–65 (7th Cir. 2012) (finding that the Supreme Court’s decision in U.S. Airways provides support for noncompetitive reassignment). 

     [47] .   U.S. Airways , 535 U.S. at 391.

     [48] .   Id. at 403.

     [49] .   Id. at 404.

     [50].   Jared Hager, Note, Bowling for Certainty: Picking Up the Seven-Ten Split by Pinning Down the Reasonableness of Reassignment After Barnett, 87 Minn. L. Rev. 2063, 2081–82 (2003).

     [51] .   U.S. Airways , 535 U.S. at 403.

     [52] .   Id. at 397.

     [53] .   Id. at 403.

     [54] .   Id. at 405.

     [55] .   See infra notes 57–58.

     [56].   EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“[T]he ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (stating that the ADA “does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate”).

     [57].   EEOC v. United Airlines, Inc., 693 F.3d 760, 765 (7th Cir. 2012) (adopting the approach that “the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (concluding that reassignment to a vacant position must be offered to the disabled employee if he or she is unable to perform their existing job).  Some consider the D.C. Circuit to require mandatory reassignment to a vacant position; however, the court was not confronted with an employer’s best-qualified hiring policy when it decided the case.  See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998).

     [58] .   St. Joseph’s Hosp ., 842 F.3d at 1345; Huber , 486 F.3d at 483.

     [59] .   See St. Joseph’s Hosp ., 842 F.3d at 1345; Huber , 486 F.3d at 483.

     [60] .   See St. Joseph’s Hosp ., 842 F.3d at 1345 (“To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.”). 

     [61] .   Huber , 486 F.3d at 483 (quoting EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1028 (7th Cir. 2000) (internal citations omitted), overruled by United Airlines, Inc. , 693 F.3d at 764–65).  The Eighth Circuit viewed U.S. Airways as support for its position, even though the Supreme Court stated in that case that the ADA requires employers to sometimes treat an employee with a disability preferentially.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397–98 (2002).

     [62] .   Huber , 486 F.3d at 483 (stating that “[t]his conclusion is bolstered by the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett ”).

     [63] .   St. Joseph’s Hosp ., 842 F.3d at 1346.

     [64].   United Airlines, Inc. , 693 F.3d at 763; Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).

     [65] .   Smith , 180 F.3d at 1165 (“Allowing the plaintiff to compete for jobs open to the public is no accommodation at all. . . . [The employer’s] policy or practice that all reassignments are made through competitive hiring prevents the reassignment of employees with disabilities to vacant positions for which they are qualified and discriminates against qualified individuals with disabilities.” (quoting Ransom v. State of Ariz. Bd. of Regents, 983 F. Supp. 895, 902–03 (D. Ariz. 1997) (internal citations  and quotation marks omitted)). 

     [66] .   Id . (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998)).

     [67] .   Aka , 156 F.3d at 1304.

     [68] .   Smith , 180 F.3d at 1164.

     [69].   Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018).

  • See 42 U.S.C. § 12116 (authorizing the EEOC to create regulations to implement the ADA).
  • See EEOC, supra note 37.
  • Smith , 180 F.3d at 1166–67 (quoting EEOC, Enforcement Guidance: Reasonable accommodation and Undue Hardship Under the Americans With Disabilities Act 44 (1999)).
  • See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345–47 (11th Cir. 2016); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 482–83 (8th Cir. 2007).
  • See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000), overruled by EEOC v. United Airlines, Inc., 693 F.3d 760, 763 (7th Cir. 2012).
  • See United Airlines , 693 F.3d at 761, 764–65.
  • Id. at 763.
  • Id. at 764.
  • Id. (stating that “the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy”).
  • 80 . See supra notes 59–64 and accompanying text.
  • 81 . See United Airlines , 693 F.3d at 765.
  • 82 . See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1014–15 (4th Cir. 2020) (stating that the ADA simply provides that employers do not need to create preferential accommodations that maximize workplace opportunities for employees with disabilities).
  • 83 . See Eustace v. Springfield Pub. Schs., 463 F. Supp. 3d 87, 106–09 (D. Mass. 2020); Kosakoski v. PNC Fin. Servs. Grp., Inc., No. 12-cv-00038, 2013 WL 5377863, at *17 (E.D. Pa. Sept. 26, 2013) (finding that an employer’s best-qualified hiring policy does not create a per se undue hardship that would alleviate the employer’s duty to reassign).
  • 84 . Elledge , 979 F.3d at 1016.
  • 85 . Id . at 1007–08.
  • 86 . at 1008.
  • 87 . at 1009–10.
  • 88 . at 1008.
  • 90 . at 1008, 1012 (according to Elledge, this restructuring also allowed him to perform the true essential functions of his job).
  • Id. at 1008.
  • Id. at 1008, 1017.
  • Id. at 1009 (citing 42 U.S.C. § 12111(8)).
  • Id. at 1012.  When determining whether an employee is a qualified individual when seeking reassignment as a reasonable accommodation, the relevant question is whether the employee is qualified for the new position, not whether the employee is qualified for her current position.   See United States EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1344 (11th Cir. 2016).
  • Elledge , 979 F.3d at 1013–14.
  • Id. at 1014.
  • Id. at 1015.
  • Id. at 1016–17.
  • Id. at 1015 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 404–05 (2002)).
  • Id . at 1015–16.
  • Id. at 1016 (Lowe’s’ policy “invites, rewards, and protects the formation of settled expectations regarding hiring decisions.”).
  • Id. at 1015–16, 1018.
  • EEOC, supra note 37.
  • Elledge , 979 F.3d at 1016 (stating that “Lowe’s offer of a motorized scooter was reasonably calculated to mitigate the disadvantages of Elledge’s reduction in natural mobility”).
  • Id. at 1012.
  • The ADA: Your Responsibilities as an Employer (2021) , EEOC,

https://www.eeoc.gov/publications/ada-your-responsibilities-employer (last visited Jan. 27, 2022) (“It need not be the best accommodation or the accommodation the individual with a disability would prefer . . . .”).

  • Elledge , 979 F.3d at 1013 (stating that an employer “do[es] not need to change a job’s essential functions or split them across multiple employees” to accommodate an employee with a disability (citing 29 C.F.R. app. § 1630.2(o))).
  • Id. at 1013.
  • Id. at 1016 (“Lowe’s advanced its employees in accordance with a special kind of best-qualified hiring system.” (emphasis added)).
  • Id. (noting that this hiring policy was “a succession system within a best-qualified system”).
  • Id. at 1016.
  • See Hager, supra note 51, at 2091.
  • See Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 606, 613–14 (1980) (stating that seniority systems are objective and easily calculable since they are based on the length of employment with a particular employer).
  • EEOC v. Mfrs. & Traders Trust Co., 429 F. Supp. 3d 89, 115 (D. Md. 2019) (“Unlike a seniority system, a best-qualified candidate policy provides no guarantee of steady and predictable advancement.  Indeed, by its very nature, a best-qualified employee policy undermines predictability, as employees cannot know the pool of applicants against whom they will compete.”).
  • There is no legal entitlement to a vacant job position based on an employer’s best-qualified hiring policy because the applicant does not have a contractual agreement with the employer that provides a right to the position.  See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 409 (2002) (O’Connor, J., concurring).
  • Mfrs. & Traders Trust , 429 F. Supp. 3d at 116.
  • See Bryant , 444 U.S. at 605–06.
  • See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 n.5 (11th Cir. 2016) (acknowledging that a merit-based selection policy leaves more room for subjectivity and is inherently more susceptible to abuse for discriminatory purposes).
  • See Barnett , 535 U.S. at 421–22 (Souter, J., dissenting).
  • Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1005, 1016 (4th Cir. 2020).
  • Barnett , 535 U.S. at 403–06.
  • EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016).
  • 42 U.S.C. § 12101(b)(1).
  • 42 U.S.C. § 12111(9)(B).
  • ADA Amendments Act, Pub. L. No. 110–325, 122 Stat. 3553 § 2(a)(4) (2008).  (“[T]he holdings of [recent Supreme Court cases] . . . have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect . . . .”).
  • Creta, supra note 11, at 1698; see also Befort, supra note 5, at 449 (stating that the ADA departed from the Rehabilitation Act by including “reassignment to a vacant position” in its list of reasonable accommodations (quoting 42 U.S.C. § 12111(9)(B))).
  • H.R. Rep. No. 101-485, pt. 2, at 63 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 345.
  • See 42 U.S.C. § 12111(9); EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 112 (D. Md. 2019).
  • Mfrs. & Trust , 402 F. Supp. 3d at 112.
  • Id. at 113 (quoting Smith v. Midland Brake, Inc., 180 F.3d 1154, 1168 n.7 (10th Cir. 1999)).
  • 42 U.S.C. § 12112(a).
  • Mfrs. & Trust , 429 F. Supp. 3d at 112.
  • Creta, supra note 11, at 1719.
  • 42 U.S.C. § 12101(a)(8).
  • See 42 U.S.C. § 12101(a)(2) (stating that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”).
  • U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).
  • EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2020 (2021), https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020 .
  • Press Release, U.S. Bureau of Lab. Stats., Persons with a Disability: Labor: Force Characteristics Summary (Feb. 24, 2021), https://www.bls.gov/news.release/disabl.nr0.htm .
  • Sarah Parker Harris & Rob Gould, Research Brief: Experience of Discrimination and the ADA , ADA Nat’l Network (2019) (citing J. E. Beatty, Career Barriers Experienced by People with Chronic Illness: A US Study , 24 Emp. Resp. & Rts. J., 91–110 (2012)), https://adata.org/research_brief/experience-discrimination-and-ada .
  • Stacy M. Hickox, Transfer as an Accommodation: Standards from Discrimination Cases and Theory , 62 Ark. L. Rev. 195, 224 (2009).
  • See Befort, supra note 5, at 469.
  • Id. at 469–70.
  • 42 U.S.C. § 12101(a)(7)–(8).
  • U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).
  • EEOC v. Mfrs. & Trust Co., 429 F. Supp. 3d 89, 103 (D. Md. 2019) (quoting Barnett , 535 U.S. at 394.
  • Barnett , 535 U.S. at 402–03 (stating that normally a reassignment request is reasonable within the meaning of the ADA).
  • Id. at 401–02.
  • See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (reasonable accommodation requests require “difficult, fact intensive, case-by-case analyses” and are “ill-served by per se rules or stereotypes”).
  • Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998).
  • See Terrazas v. Medlantic Healthcare Group, Inc., 45 F. Supp. 2d 46, 54 (D.D.C. 1999).
  • See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999) (“Congress has already significantly cabined the obligation to offer reassignment to a qualified employee who is disabled so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business.”). 
  • See 42 U.S.C. § 12112(b)(5)(A) (stating that an employer only needs to accommodate an “otherwise qualified individual with a disability” (emphasis added)). 
  • See EEOC, supra note 109.
  • See id .; see also id. , supra note 109 (stating that an employer is “not required to create a position or to bump another employee in order to create a vacancy”).
  • Smith , 180 F.3d 1154, 1170 (10th Cir. 1999).
  • 42 U.S.C. § 12112(b)(5)(A). 
  • See Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1016–18 (4th Cir. 2020).
  • See 42 U.S.C. § 12111(10).

      *.   J.D. Candidate 2022, Wake Forest University School of Law; Political Science & Spanish, B.A. 2018, Emory University.  Thank you to the Board and Staff of the Wake Forest Law Review for their hard work and time on this Comment.  Thank you also to my family and friends for their encouragement and for enduring endless discussions on the ADA.  Lastly, I would like to thank Professor Sue Grebeldinger for igniting my interest in Employment Law.  

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Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA

Notice concerning the americans with disabilities act amendments act of 2008.

This document was issued prior to enactment of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) , which took effect on January 1, 2009.  The ADAAA broadened the statutory definition of disability, as summarized in this  list of specific changes.

  • SUBJECT: EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
  • PURPOSE: This enforcement guidance supersedes the enforcement guidance issued by the Commission on 03/01/99. Most of the original guidance remains the same, but limited changes have been made as a result of: (1) the Supreme Court's decision in US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), and (2) the Commission's issuance of new regulations under section 501 of the Rehabilitation Act. The major changes in response to the Barnett decision are found on pages 4-5, 44-45, and 61-62. In addition, minor changes were made to certain footnotes and the Instructions for Investigators as a result of the Barnett decision and the new section 501 regulations.
  • EFFECTIVE DATE: Upon receipt.
  • EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, . a(5), this Notice will remain in effect until rescinded or superseded.
  • ORIGINATOR: ADA Division, Office of Legal Counsel.
  • INSTRUCTIONS: File after Section 902 of Volume II of the Compliance Manual.

Enforcement Guidance:  Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Table of contents, introduction, general principles, requesting reasonable accommodation, reasonable accommodation and job applicants.

REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES OF EMPLOYMENT

TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE

JOB RESTRUCTURING

MODIFIED OR PART-TIME SCHEDULE

MODIFIED WORKPLACE POLICIES

REASSIGNMENT

OTHER REASONABLE ACCOMMODATION ISSUES

UNDUE HARDSHIP ISSUES

BURDENS OF PROOF

Instructions for investigators.

APPENDIX: RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS

This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. This Guidance sets forth an employer's legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires.

This Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer's ability to ask questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and privileges of employment. The Guidance also covers different types of reasonable accommodations related to job performance, including job restructuring, leave, modified or part-time schedules, modified workplace policies, and reassignment. Questions concerning the relationship between the ADA and the Family and Medical Leave Act (FMLA) are examined as they affect leave and modified schedules. Reassignment issues addressed include who is entitled to reassignment and the extent to which an employer must search for a vacant position. The Guidance also examines issues concerning the interplay between reasonable accommodations and conduct rules.

The final section of this Guidance discusses undue hardship, including when requests for schedule modifications and leave may be denied.

Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the "ADA") (1) requires an employer (2) to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. "In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." (3) There are three categories of "reasonable accommodations":

"(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or (iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." (4)

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

Reasonable accommodation is available to qualified applicants and employees with disabilities. (5) Reasonable accommodations must be provided to qualified employees regardless of whether they work part- time or full-time, or are considered "probationary." Generally, the individual with a disability must inform the employer that an accommodation is needed. (6)

There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include:

  • making existing facilities accessible;
  • job restructuring;
  • part-time or modified work schedules;
  • acquiring or modifying equipment;
  • changing tests, training materials, or policies;
  • providing qualified readers or interpreters; and
  • reassignment to a vacant position. (7)

A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;" (8) this means it is "reasonable" if it appears to be "feasible" or "plausible." (9) An accommodation also must be effective in meeting the needs of the individual. (10) In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

Example A: An employee with a hearing disability must be able to contact the public by telephone. The employee proposes that he use a TTY (11) to call a relay service operator who can then place the telephone call and relay the conversation between the parties. This is "reasonable" because a TTY is a common device used to facilitate communication between hearing and hearing-impaired individuals. Moreover, it would be effective in enabling the employee to perform his job.

Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being required to stand when the job can be effectively performed sitting down. This "reasonable" accommodation is effective because it addresses the employee's fatigue and enables her to perform her job.

Example C: A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments. These accommodations are reasonable because they appear to be feasible solutions to this employee's problems dealing with changes to his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

There are several modifications or adjustments that are not considered forms of reasonable accommodation. (12) An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, (13) is not a "qualified" individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards -- whether qualitative or quantitative (14) -- that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.

An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job. Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs. (15)

Undue Hardship

The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. (16) "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. (17) An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA's "undue hardship" standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation. (18)

How must an individual request a reasonable accommodation?

When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." (19)

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," (20) a prerequisite for the individual to be entitled to a reasonable accommodation.

May someone other than the individual with a disability request a reasonable accommodation on behalf of the individual?

Yes, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability. (21) Of course, the individual with a disability may refuse to accept an accommodation that is not needed.

Example A: An employee's spouse phones the employee's supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. This discussion constitutes a request for reasonable accommodation.

Example B: An employee has been out of work for six months with a workers' compensation injury. The employee's doctor sends the employer a letter, stating that the employee is released to return to work, but with certain work restrictions. (Alternatively, the letter may state that the employee is released to return to a light duty position.) The letter constitutes a request for reasonable accommodation.

Do requests for reasonable accommodation need to be in writing?

No. Requests for reasonable accommodation do not need to be in writing. Individuals may request accommodations in conversation or may use any other mode of communication. (22) An employer may choose to write a memorandum or letter confirming the individual's request. Alternatively, an employer may ask the individual to fill out a form or submit the request in written form, but the employer cannot ignore the initial request. An employer also may request reasonable documentation that the individual has an ADA disability and needs a reasonable accommodation. (See Question 6).

When should an individual with a disability request a reasonable accommodation?

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. (23) As a practical matter, it may be in an employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur.

What must an employer do after receiving a request for reasonable accommodation?

The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. (24) The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. (25)

The exact nature of the dialogue will vary. In many instances, both the disability and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion. In other situations, the employer may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation. While the individual with a disability does not have to be able to specify the precise accommodation, s/he does need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide. Where the individual or the employer are not familiar with possible accommodations, there are extensive public and private resources to help the employer identify reasonable accommodations once the specific limitations and workplace barriers have been ascertained. (26)

May an employer ask an individual for documentation when the individual requests reasonable accommodation?

Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. (27) The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional. (28)

As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.

Example A: An employee says to an employer, "I'm having trouble reaching tools because of my shoulder injury." The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).

Example B: A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform the activity or activities. The employer also may ask why the disability necessitates use of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help the employee retain the information from the meetings. (29)

Example C: An employee's spouse phones the employee's supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. The supervisor can ask the spouse to send in documentation from the employee's treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work. (30)

If an individual's disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation. (31) On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. (32)

May an employer require an individual to go to a health care professional of the employer's (rather than the employee's) choice for purposes of documenting need for accommodation and disability?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer's choice if the individual provides insufficient information from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation. However, if an individual provides insufficient documentation in response to the employer's initial request, the employer should explain why the documentation is insufficient and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation. (33)

Any medical examination conducted by the employer's health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. (34) If an employer requires an employee to go to a health professional of the employer's choice, the employer must pay all costs associated with the visit(s).

Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation?

Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.

Example A: An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin. The doctor's note constitutes sufficient documentation that the person has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result. The employer cannot ask for additional documentation.

Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested a reasonable accommodation. The documentation provided at that time from the employee's psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. The psychiatrist's letter explained that during periods when the condition flared up, the person's manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes.

Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity.

Example C: An employee gives her employer a letter from her doctor, stating that the employee has asthma and needs the employer to provide her with an air filter. This letter contains insufficient information as to whether the asthma is an ADA disability because it does not provide any information as to its severity (i.e., whether it substantially limits a major life activity). Furthermore, the letter does not identify precisely what problem exists in the workplace that requires an air filter or any other reasonable accommodation. Therefore, the employer can request additional documentation.

Is an employer required to provide the reasonable accommodation that the individual wants?

The employer may choose among reasonable accommodations as long as the chosen accommodation is effective. (35) Thus, as part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.

If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective (i.e., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment). Similarly, when there are two or more effective accommodations, the employer may choose the one that is easier to provide. In either situation, the employer does not have to show that it is an undue hardship to provide the more expensive or more difficult accommodation. If more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." (36)

Example A: An employee with a severe learning disability has great difficulty reading. His supervisor sends him many detailed memoranda which he often has trouble understanding. However, he has no difficulty understanding oral communication. The employee requests that the employer install a computer with speech output and that his supervisor send all memoranda through electronic mail which the computer can then read to him. The supervisor asks whether a tape recorded message would accomplish the same objective and the employee agrees that it would. Since both accommodations are effective, the employer may choose to provide the supervisor and employee with a tape recorder so that the supervisor can record her memoranda and the employee can listen to them.

Example B: An attorney with a severe vision disability requests that her employer provide someone to read printed materials that she needs to review daily. The attorney explains that a reader enables her to review substantial amounts of written materials in an efficient manner. Believing that this reasonable accommodation would be too costly, the employer instead provides the attorney with a device that allows her to magnify print so that she can read it herself. The attorney can read print using this device, but with such great difficulty it significantly slows down her ability to review written materials. The magnifying device is ineffective as a reasonable accommodation because it does not provide the attorney with an equal opportunity to attain the same level of performance as her colleagues. Without an equal opportunity to attain the same level of performance, this attorney is denied an equal opportunity to compete for promotions. In this instance, failure to provide the reader, absent undue hardship, would violate the ADA.

How quickly must an employer respond to a request for reasonable accommodation?

An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. (37) Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA. (38)

Example A: An employer provides parking for all employees. An employee who uses a wheelchair requests from his supervisor an accessible parking space, explaining that the spaces are so narrow that there is insufficient room for his van to extend the ramp that allows him to get in and out. The supervisor does not act on the request and does not forward it to someone with authority to respond. The employee makes a second request to the supervisor. Yet, two months after the initial request, nothing has been done. Although the supervisor never definitively denies the request, the lack of action under these circumstances amounts to a denial, and thus violates the ADA.

Example B: An employee who is blind requests adaptive equipment for her computer as a reasonable accommodation. The employer must order this equipment and is informed that it will take three months to receive delivery. No other company sells the adaptive equipment the employee needs. The employer notifies the employee of the results of its investigation and that it has ordered the equipment. Although it will take three months to receive the equipment, the employer has moved as quickly as it can to obtain it and thus there is no ADA violation resulting from the delay. The employer and employee should determine what can be done so that the employee can perform his/her job as effectively as possible while waiting for the equipment.

May an employer require an individual with a disability to accept a reasonable accommodation that s/he does not want?

No. An employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, s/he may not be qualified to remain in the job. (39)

May an employer ask whether a reasonable accommodation is needed when an applicant has not asked for one?

An employer may tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.

During the hiring process and before a conditional offer is made, an employer generally may not ask an applicant whether s/he needs a reasonable accommodation for the job, except when the employer knows that an applicant has a disability -- either because it is obvious or the applicant has voluntarily disclosed the information -- and could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type. (40)

After a conditional offer of employment is extended, an employer may inquire whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job) as long as all entering employees in the same job category are asked this question. Alternatively, an employer may ask a specific applicant if s/he needs a reasonable accommodation if the employer knows that this applicant has a disability -- either because it is obvious or the applicant has voluntarily disclosed the information -- and could reasonably believe that the applicant will need a reasonable accommodation. If the applicant replies that s/he needs a reasonable accommodation, the employer may inquire as to what type. (41)

Does an employer have to provide a reasonable accommodation to an applicant with a disability even if it believes that it will be unable to provide this individual with a reasonable accommodation on the job?

Yes. An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job. In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. And even if an individual will need reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job. (42)

Example A: An employer is impressed with an applicant's resume and contacts the individual to come in for an interview. The applicant, who is deaf, requests a sign language interpreter for the interview. The employer cancels the interview and refuses to consider further this applicant because it believes it would have to hire a full-time interpreter. The employer has violated the ADA. The employer should have proceeded with the interview, using a sign language interpreter (absent undue hardship), and at the interview inquired to what extent the individual would need a sign language interpreter to perform any essential functions requiring communication with other people.

Example B: An individual who has paraplegia applies for a secretarial position. Because the office has two steps at the entrance, the employer arranges for the applicant to take a typing test, a requirement of the application process, at a different location. The applicant fails the test. The employer does not have to provide any further reasonable accommodations for this individual because she is no longer qualified to continue with the application process.

REASONABLE ACCOMMODATION RELATED TO THE BENEFITS AND PRIVILEGES OF EMPLOYMENT (43)

The ADA requires employers to provide reasonable accommodations so that employees with disabilities can enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated employees without disabilities. Benefits and privileges of employment include, but are not limited to, employer-sponsored: (1) training, (2) services (e.g., employee assistance programs (EAP's), credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social functions (e.g., parties to celebrate retirements and birthdays, and company outings). (44) If an employee with a disability needs a reasonable accommodation in order to gain access to, and have an equal opportunity to participate in, these benefits and privileges, then the employer must provide the accommodation unless it can show undue hardship.

Does an employer have to provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace to non-disabled employees?

Yes. Employers provide information to employees through different means, including computers, bulletin boards, mailboxes, posters, and public address systems. Employers must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs.

Example A: An employee who is blind has adaptive equipment for his computer that integrates him into the network with other employees, thus allowing communication via electronic mail and access to the computer bulletin board. When the employer installs upgraded computer equipment, it must provide new adaptive equipment in order for the employee to be integrated into the new networks, absent undue hardship. Alternative methods of communication (e.g., sending written or telephone messages to the employee instead of electronic mail) are likely to be ineffective substitutes since electronic mail is used by every employee and there is no effective way to ensure that each one will always use alternative measures to ensure that the blind employee receives the same information that is being transmitted via computer.

Example B: An employer authorizes the Human Resources Director to use a public address system to remind employees about special meetings and to make certain announcements. In order to make this information accessible to a deaf employee, the Human Resources Director arranges to send in advance an electronic mail message to the deaf employee conveying the information that will be broadcast. The Human Resources Director is the only person who uses the public address system; therefore, the employer can ensure that all public address messages are sent, via electronic mail, to the deaf employee. Thus, the employer is providing this employee with equal access to office communications.

Must an employer provide reasonable accommodation so that an employee may attend training programs?

Yes. Employers must provide reasonable accommodation (e.g., sign language interpreters; written materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training, absent undue hardship. This obligation extends to in-house training, as well as to training provided by an outside entity. Similarly, the employer has an obligation to provide reasonable accommodation whether the training occurs on the employer's premises or elsewhere.

Example A: XYZ Corp. has signed a contract with Super Trainers, Inc., to provide mediation training at its facility to all of XYZ's Human Resources staff. One staff member is blind and requests that materials be provided in braille. Super Trainers refuses to provide the materials in braille. XYZ maintains that it is the responsibility of Super Trainers and sees no reason why it should have to arrange and pay for the braille copy.

Both XYZ (as an employer covered under Title I of the ADA) and Super Trainers (as a public accommodation covered under Title III of the ADA) (45) have obligations to provide materials in alternative formats. This fact, however, does not excuse either one from their respective obligations. If Super Trainers refuses to provide the braille version, despite its Title III obligations, XYZ still retains its obligation to provide it as a reasonable accommodation, absent undue hardship.

Employers arranging with an outside entity to provide training may wish to avoid such problems by specifying in the contract who has the responsibility to provide appropriate reasonable accommodations. Similarly, employers should ensure that any offsite training will be held in an accessible facility if they have an employee who, because of a disability, requires such an accommodation.

Example B: XYZ Corp. arranges for one of its employees to provide CPR training. This three-hour program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. XYZ must provide the interpreter because the CPR training is a benefit that XYZ offers all employees, even though it is optional.

TYPES OF REASONABLE ACCOMMODATIONS RELATED TO JOB PERFORMANCE (46)

Below are discussed certain types of reasonable accommodations related to job performance.

Job Restructuring

Job restructuring includes modifications such as:

  • reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and
  • altering when and/or how a function, essential or marginal, is performed. (47)

An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.

If, as a reasonable accommodation, an employer restructures an employee's job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that s/he can perform?

Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation.

Example: A cleaning crew works in an office building. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. The employer can switch the marginal functions performed by these two employees.

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. (48) An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. (49) For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to:

  • obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy;
  • recuperating from an illness or an episodic manifestation of the disability;
  • obtaining repairs on a wheelchair, accessible van, or prosthetic device;
  • avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis);
  • training a service animal (e.g., a guide dog); or
  • receiving training in the use of braille or to learn sign language.

May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?

No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation. (50)

Does an employer have to hold open an employee's job as a reasonable accommodation?

Yes. An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. (51)

If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position. (52)

Example: An employee needs eight months of leave for treatment and recuperation related to a disability. The employer grants the request, but after four months the employer determines that it can no longer hold open the position for the remaining four months without incurring undue hardship. The employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned for the remaining four months of leave, at the end of which time the employee would return to work in that new position. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is also unavailable.

Can an employer penalize an employee for work missed during leave taken as a reasonable accommodation?

No. To do so would be retaliation for the employee's use of a reasonable accommodation to which s/he is entitled under the law. (53) Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation. (54)

Example A: A salesperson took five months of leave as a reasonable accommodation. The company compares the sales records of all salespeople over a one-year period, and any employee whose sales fall more than 25% below the median sales performance of all employees is automatically terminated. The employer terminates the salesperson because she had fallen below the required performance standard. The company did not consider that the reason for her lower sales performance was her five-month leave of absence; nor did it assess her productivity during the period she did work (i.e., prorate her productivity).

Penalizing the salesperson in this manner constitutes retaliation and a denial of reasonable accommodation.

Example B: Company X is having a reduction-in-force. The company decides that any employee who has missed more than four weeks in the past year will be terminated. An employee took five weeks of leave for treatment of his disability. The company cannot count those five weeks in determining whether to terminate this employee. (55)

When an employee requests leave as a reasonable accommodation, may an employer provide an accommodation that requires him/her to remain on the job instead?

Yes, if the employer's reasonable accommodation would be effective and eliminate the need for leave. (56) An employer need not provide an employee's preferred accommodation as long as the employer provides an effective accommodation. (57) Accordingly, in lieu of providing leave, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocation of marginal functions or temporary transfer) as long as it does not interfere with the employee's ability to address his/her medical needs. The employer is obligated, however, to restore the employee's full duties or to return the employee to his/her original position once s/he no longer needs the reasonable accommodation.

Example A: An employee with emphysema requests ten weeks of leave for surgery and recuperation related to his disability. In discussing this request with the employer, the employee states that he could return to work after seven weeks if, during his first three weeks back, he could work part-time and eliminate two marginal functions that require lots of walking. If the employer provides these accommodations, then it can require the employee to return to work after seven weeks.

Example B: An employee's disability is getting more severe and her doctor recommends surgery to counteract some of the effects. After receiving the employee's request for leave for the surgery, the employer proposes that it provide certain equipment which it believes will mitigate the effects of the disability and delay the need for leave to get surgery. The employer's proposed accommodation is not effective because it interferes with the employee's ability to get medical treatment.

How should an employer handle leave for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)? (58)

An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take. (59)

Under the ADA, an employee who needs leave related to his/her disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. An employer must allow the individual to use any accrued paid leave first, but, if that is insufficient to cover the entire period, then the employer should grant unpaid leave. An employer must continue an employee's health insurance benefits during his/her leave period only if it does so for other employees in a similar leave status. As for the employee's position, the ADA requires that the employer hold it open while the employee is on leave unless it can show that doing so causes undue hardship. When the employee is ready to return to work, the employer must allow the individual to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without reasonable accommodation).

If it is an undue hardship under the ADA to hold open an employee's position during a period of leave, or an employee is no longer qualified to return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which s/he is qualified.

Under the FMLA, an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period. The FMLA guarantees the right of the employee to return to the same position or to an equivalent one. (60) An employer must allow the individual to use any accrued paid leave first, but if that is insufficient to cover the entire period, then the employer should grant unpaid leave. The FMLA requires an employer to continue the employee's health insurance coverage during the leave period, provided the employee pays his/her share of the premiums.

Example A: An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors. (61)

Example B: An employee with an ADA disability has taken 10 weeks of FMLA leave and is preparing to return to work. The employer wants to put her in an equivalent position rather than her original one. Although this is permissible under the FMLA, the ADA requires that the employer return the employee to her original position. Unless the employer can show that this would cause an undue hardship, or that the employee is no longer qualified for her original position (with or without reasonable accommodation), the employer must reinstate the employee to her original position.

Example C: An employee with an ADA disability has taken 12 weeks of FMLA leave. He notifies his employer that he is ready to return to work, but he no longer is able to perform the essential functions of his position or an equivalent position. Under the FMLA, the employer could terminate his employment, (62) but under the ADA the employer must consider whether the employee could perform the essential functions with reasonable accommodation (e.g., additional leave, part-time schedule, job restructuring, or use of specialized equipment). If not, the ADA requires the employer to reassign the employee if there is a vacant position available for which he is qualified, with or without reasonable accommodation, and there is no undue hardship.

Modified or Part-Time Schedule

Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship?

Yes. (63) A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees. (64)

Example A: An employee with HIV infection must take medication on a strict schedule. The medication causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to take a daily 45-minute break when the nausea occurs. The employer must grant this request absent undue hardship.

For certain positions, the time during which an essential function is performed may be critical. This could affect whether an employer can grant a request to modify an employee's schedule. (65) Employers should carefully assess whether modifying the hours could significantly disrupt their operations -- that is, cause undue hardship -- or whether the essential functions may be performed at different times with little or no impact on the operations or the ability of other employees to perform their jobs.

If modifying an employee's schedule poses an undue hardship, an employer must consider reassignment to a vacant position that would enable the employee to work during the hours requested. (66)

Example B: A day care worker requests that she be allowed to change her hours from 7:00 a.m. - 3:00 p.m. to 10:00 a.m. - 6:00 p.m. because of her disability. The day care center is open from 7:00 a.m. - 7:00 p.m. and it will still have sufficient coverage at the beginning of the morning if it grants the change in hours. In this situation, the employer must provide the reasonable accommodation.

Example C: An employee works for a morning newspaper, operating the printing presses which run between 10 p.m. and 3 a.m. Due to her disability, she needs to work in the daytime. The essential function of her position, operating the printing presses, requires that she work at night because the newspaper cannot be printed during the daytime hours. Since the employer cannot modify her hours, it must consider whether it can reassign her to a different position.

How should an employer handle requests for modified or part-time schedules for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)? (67)

An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.

Under the ADA, an employee who needs a modified or part-time schedule because of his/her disability is entitled to such a schedule if there is no other effective accommodation and it will not cause undue hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant position for which s/he is qualified and which would allow the employer to grant the modified or part-time schedule (absent undue hardship). (68) An employee receiving a part-time schedule as a reasonable accommodation is entitled only to the benefits, including health insurance, that other part-time employees receive. Thus, if non- disabled part-time workers are not provided with health insurance, then the employer does not have to provide such coverage to an employee with a disability who is given a part-time schedule as a reasonable accommodation.

Under the FMLA, an eligible employee is entitled to take leave intermittently or on a part-time basis, when medically necessary, until s/he has used up the equivalent of 12 workweeks in a 12- month period. When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the leave) to an available alternative position, with equivalent pay and benefits, for which the employee is qualified and which better suits his/her reduced hours. (69) An employer always must maintain the employee's existing level of coverage under a group health plan during the period of FMLA leave, provided the employee pays his/her share of the premium. (70)

Example: An employee with an ADA disability requests that she be excused from work one day a week for the next six months because of her disability. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that statute if it is medically necessary, even if the leave would be an undue hardship under the ADA.

Modified Workplace Policies

Is it a reasonable accommodation to modify a workplace policy?

Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations, (71) absent undue hardship. But, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.

Example: An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes explains to her employer that she may occasionally take too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. The employer must modify its policy to grant this request, absent undue hardship. Similarly, an employer might have to modify a policy to allow an employee with a disability to bring in a small refrigerator, or to use the employer's refrigerator, to store medication that must be taken during working hours.

Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. For example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability- related medical problems, barring undue hardship. (72) Furthermore, an employer may be required to provide additional leave to an employee with a disability as a reasonable accommodation in spite of a "no-fault" leave policy, unless the provision of such leave would impose an undue hardship. (73)

In some instances, an employer's refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation. For example, an employer may have a policy requiring employees to notify supervisors before 9:00 a.m. if they are unable to report to work. If an employer would excuse an employee from complying with this policy because of emergency hospitalization due to a car accident, then the employer must do the same thing when the emergency hospitalization is due to a disability. (74)

Reassignment (75)

The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation. (76) This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. (77)

An employee must be "qualified" for the new position. An employee is "qualified" for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. (78) The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.

There is no obligation for the employer to assist the individual to become qualified. Thus, the employer does not have to provide training so that the employee acquires necessary skills to take a job. (79) The employer, however, would have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position.

Example A: An employer is considering reassigning an employee with a disability to a position which requires the ability to speak Spanish in order to perform an essential function. The employee never learned Spanish and wants the employer to send him to a course to learn Spanish. The employer is not required to provide this training as part of the obligation to make a reassignment. Therefore, the employee is not qualified for this position.

Example B: An employer is considering reassigning an employee with a disability to a position in which she will contract for goods and services. The employee is qualified for the position. The employer has its own specialized rules regarding contracting that necessitate training all individuals hired for these positions. In this situation, the employer must provide the employee with this specialized training.

Before considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship. (80) However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.

"Vacant" means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time. A "reasonable amount of time" should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time. (81) A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position. (82)

Example C: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that another employee resigned and that that position will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by the employee with a disability. If the employee is qualified for that position, the employer must offer it to him.

Example D: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a "reasonable amount of time." (If, six months from now, the employer decides to advertise the position, it must allow the individual to apply for that position and give the application the consideration it deserves.)

The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc. (83) If it is unclear which position comes closest, the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned. Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.

Is a probationary employee entitled to reassignment?

Employers cannot deny a reassignment to an employee solely because s/he is designated as "probationary." An employee with a disability is eligible for reassignment to a new position, regardless of whether s/he is considered "probationary," as long as the employee adequately performed the essential functions of the position, with or without reasonable accommodation, before the need for a reassignment arose.

The longer the period of time in which an employee has adequately performed the essential functions, with or without reasonable accommodation, the more likely it is that reassignment is appropriate if the employee becomes unable to continue performing the essential functions of the current position due to a disability. If, however, the probationary employee has never adequately performed the essential functions, with or without reasonable accommodation, then s/he is not entitled to reassignment because s/he was never "qualified" for the original position. In this situation, the employee is similar to an applicant who applies for a job for which s/he is not qualified, and then requests reassignment. Applicants are not entitled to reassignment.

Example A: An employer designates all new employees as "probationary" for one year. An employee has been working successfully for nine months when she becomes disabled in a car accident. The employee, due to her disability, is unable to continue performing the essential functions of her current position, with or without reasonable accommodation, and seeks a reassignment. She is entitled to a reassignment if there is a vacant position for which she is qualified and it would not pose an undue hardship.

Example B: A probationary employee has been working two weeks, but has been unable to perform the essential functions of the job because of his disability. There are no reasonable accommodations that would permit the individual to perform the essential functions of the position, so the individual requests a reassignment. The employer does not have to provide a reassignment (even if there is a vacant position) because, as it turns out, the individual was never qualified -- i.e., the individual was never able to perform the essential functions of the position, with or without reasonable accommodation, for which he was hired.

Must an employer offer reassignment as a reasonable accommodation if it does not allow any of its employees to transfer from one position to another?

Yes. The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer has a policy prohibiting transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship. (84)

Is an employer's obligation to offer reassignment to a vacant position limited to those vacancies within an employee's office, branch, agency, department, facility, personnel system (if the employer has more than a single personnel system), or geographical area?

No. This is true even if the employer has a policy prohibiting transfers from one office, branch, agency, department, facility, personnel system, or geographical area to another. The ADA contains no language limiting the obligation to reassign only to positions within an office, branch, agency, etc. (85) Rather, the extent to which an employer must search for a vacant position will be an issue of undue hardship. (86) If an employee is being reassigned to a different geographical area, the employee must pay for any relocation expenses unless the employer routinely pays such expenses when granting voluntary transfers to other employees.

Does an employer have to notify an employee with a disability about vacant positions, or is it the employee's responsibility to learn what jobs are vacant?

The employer is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time. (87) In order to narrow the search for potential vacancies, the employer, as part of the interactive process, should ask the employee about his/her qualifications and interests. Based on this information, the employer is obligated to inform an employee about vacant positions for which s/he may be eligible as a reassignment. However, an employee should assist the employer in identifying appropriate vacancies to the extent that the employee has access to information about them. If the employer does not know whether the employee is qualified for a specific position, the employer can discuss with the employee his/her qualifications. (88)

An employer should proceed as expeditiously as possible in determining whether there are appropriate vacancies. The length of this process will vary depending on how quickly an employer can search for and identify whether an appropriate vacant position exists. For a very small employer, this process may take one day; for other employers this process may take several weeks. (89) When an employer has completed its search, identified whether there are any vacancies (including any positions that will become vacant in a reasonable amount of time), notified the employee of the results, and either offered an appropriate vacancy to the employee or informed him/her that no appropriate vacancies are available, the employer will have fulfilled its obligation.

Does reassignment mean that the employee is permitted to compete for a vacant position?

No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended. (90)

If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the higher level position?

No, unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries. (91)

Must an employer provide a reassignment if it would violate a seniority system?

Generally, it will be "unreasonable" to reassign an employee with a disability if doing so would violate the rules of a seniority system. (92) This is true both for collectively bargained seniority systems and those unilaterally imposed by management. Seniority systems governing job placement give employees expectations of consistent, uniform treatment expectations that would be undermined if employers had to make the type of individualized, case-by-case assessment required by the reasonable accommodation process. (93)

However, if there are "special circumstances" that "undermine the employees' expectations of consistent, uniform treatment," it may be a "reasonable accommodation," absent undue hardship, to reassign an employee despite the existence of a seniority system. For example, "special circumstances" may exist where an employer retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system. (94) In this circumstance, one more exception (i.e., providing the reassignment to an employee with a disability) may not make a difference. (95) Alternatively, a seniority system may contain exceptions, such that one more exception is unlikely to matter. (96) Another possibility is that a seniority system might contain procedures for making exceptions, thus suggesting to employees that seniority does not automatically guarantee access to a specific job.

OTHER REASONABLE ACCOMMODATION ISSUES (97)

If an employer has provided one reasonable accommodation, does it have to provide additional reasonable accommodations requested by an individual with a disability?

The duty to provide reasonable accommodation is an ongoing one. (98) Certain individuals require only one reasonable accommodation, while others may need more than one. Still others may need one reasonable accommodation for a period of time, and then at a later date, require another type of reasonable accommodation. If an individual requests multiple reasonable accommodations, s/he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity.

An employer must consider each request for reasonable accommodation and determine: (1) whether the accommodation is needed, (2) if needed, whether the accommodation would be effective, and (3) if effective, whether providing the reasonable accommodation would impose an undue hardship. If a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. If there is no alternative accommodation, then the employer must attempt to reassign the employee to a vacant position for which s/he is qualified, unless to do so would cause an undue hardship.

Does an employer have to change a person's supervisor as a form of reasonable accommodation?

No. An employer does not have to provide an employee with a new supervisor as a reasonable accommodation. Nothing in the ADA, however, prohibits an employer from doing so. Furthermore, although an employer is not required to change supervisors, the ADA may require that supervisory methods be altered as a form of reasonable accommodation. (99) Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment.

Example: A supervisor frequently schedules team meetings on a day's notice often notifying staff in the afternoon that a meeting will be held on the following morning. An employee with a disability has missed several meetings because they have conflicted with previously-scheduled physical therapy sessions. The employee asks that the supervisor give her two to three days' notice of team meetings so that, if necessary, she can reschedule the physical therapy sessions. Assuming no undue hardship would result, the supervisor must make this reasonable accommodation.

Does an employer have to allow an employee with a disability to work at home as a reasonable accommodation?

An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship. (100) Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site -- e.g., food server, cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform his/her essential functions. Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer's ability to adequately supervise the employee and the employee's need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader). (101) For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship.

Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?

No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

Must an employer provide a reasonable accommodation for an employee with a disability who violated a conduct rule that is job- related for the position in question and consistent with business necessity?

An employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination. (102) Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual's disability. (103) Possible reasonable accommodations could include adjustments to starting times, specified breaks, and leave if these accommodations will enable an employee to comply with conduct rules. (104)

Example: An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. His job responsibilities involve telephone contact with the company's traveling sales representatives, who depend on him to answer urgent marketing questions and expedite special orders. The employer disciplines him for tardiness, stating that continued failure to arrive promptly during the next month will result in termination of his employment. The individual then explains that he was late because of a disability and needs to work on a later schedule. In this situation, the employer may discipline the employee because he violated a conduct standard addressing tardiness that is job-related for the position in question and consistent with business necessity. The employer, however, must consider reasonable accommodation, barring undue hardship, to enable this individual to meet this standard in the future. For example, if this individual can serve the company's sales representatives by regularly working a schedule of 10:00 a.m. to 6:30 p.m., a reasonable accommodation would be to modify his schedule so that he is not required to report for work until 10:00 a.m.

Is it a reasonable accommodation to make sure that an employee takes medication as prescribed?

No. Medication monitoring is not a reasonable accommodation. Employers have no obligation to monitor medication because doing so does not remove a workplace barrier. Similarly, an employer has no responsibility to monitor an employee's medical treatment or ensure that s/he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers. (105)

It may be a form of reasonable accommodation, however, to give an employee a break in order that s/he may take medication, or to grant leave so that an employee may obtain treatment.

Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)?

No. The ADA requires an employer to provide reasonable accommodation to remove workplace barriers, regardless of what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job. (106)

However, if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified.

Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?

Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting from a disability.

Example A: An employee with cancer undergoes chemotherapy twice a week, which causes her to be quite ill afterwards. The employee requests a modified schedule -- leave for the two days a week of chemotherapy. The treatment will last six weeks. Unless it can show undue hardship, the employer must grant this request.

Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations may also require reasonable accommodation. (107)

Example B: An employee, as a result of insulin-dependent diabetes, has developed background retinopathy (a vision impairment). The employee, who already has provided documentation showing his diabetes is a disability, requests a device to enlarge the text on his computer screen. The employer can request documentation that the retinopathy is related to the diabetes but the employee does not have to show that the retinopathy is an independent disability under the ADA. Since the retinopathy is a consequence of the diabetes (an ADA disability), the request must be granted unless undue hardship can be shown.

Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one?

Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for reasonable accommodation -- must inform the employer that an accommodation is needed. (108)

However, an employer should initiate the reasonable accommodation interactive process (109) without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation.

Example: An employee with mental retardation delivers messages at a law firm. He frequently mixes up messages for "R. Miller" and "T. Miller." The employer knows about the disability, suspects that the performance problem is a result of the disability, and knows that this employee is unable to ask for a reasonable accommodation because of his mental retardation. The employer asks the employee about mixing up the two names and asks if it would be helpful to spell the first name of each person. When the employee says that would be better, the employer, as a reasonable accommodation, instructs the receptionist to write the full first name when messages are left for one of the Messrs. Miller.

May an employer ask whether a reasonable accommodation is needed when an employee with a disability has not asked for one?

An employer may ask an employee with a known disability whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. For example, an employer could ask a deaf employee who is being sent on a business trip if s/he needs reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain about what questions it should ask to ensure that the restaurant is accessible for an employee who uses a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation. (110)

May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability?

No. An employer may not disclose that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers. (111)

An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons.

Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. In providing general ADA information to employees, an employer may wish to highlight the obligation to provide reasonable accommodation, including the interactive process and different types of reasonable accommodations, and the statute's confidentiality protections. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA's confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts.

As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable accommodation.

UNDUE HARDSHIP ISSUES (112)

An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. (113) A determination of undue hardship should be based on several factors, including:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  • the impact of the accommodation on the operation of the facility. (114)

The ADA's legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. (115) Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. (116) In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.

If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability. (117) Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees's ability to work.

Example A: An employee with breast cancer is undergoing chemotherapy. As a consequence of the treatment, the employee is subject to fatigue and finds it difficult to keep up with her regular workload. So that she may focus her reduced energy on performing her essential functions, the employer transfers three of her marginal functions to another employee for the duration of the chemotherapy treatments. The second employee is unhappy at being given extra assignments, but the employer determines that the employee can absorb the new assignments with little effect on his ability to perform his own assignments in a timely manner. Since the employer cannot show significant disruption to its operation, there is no undue hardship. (118)

Example B: A convenience store clerk with multiple sclerosis requests that he be allowed to go from working full-time to part- time as a reasonable accommodation because of his disability. The store assigns two clerks per shift, and if the first clerk's hours are reduced, the second clerk's workload will increase significantly beyond his ability to handle his responsibilities. The store determines that such an arrangement will result in inadequate coverage to serve customers in a timely manner, keep the shelves stocked, and maintain store security. Thus, the employer can show undue hardship based on the significant disruption to its operations and, therefore, can refuse to reduce the employee's hours. The employer, however, should explore whether any other reasonable accommodation will assist the store clerk without causing undue hardship.

Must an employer modify the work hours of an employee with a disability if doing so would prevent other employees from performing their jobs?

No. If the result of modifying one employee's work hours (or granting leave) is to prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship.

Example A: A crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing. The ADA does not require the employer to take any of these actions because they all significantly disrupt the operations of the business. Thus, the employer can deny the requested accommodation, but should discuss with the employee if there are other possible accommodations that would not result in undue hardship.

Example B: A computer programmer works with a group of people to develop new software. There are certain tasks that the entire group must perform together, but each person also has individual assignments. It is through habit, not necessity, that they have often worked together first thing in the morning.

The programmer, due to her disability, requests an adjustment in her work schedule so that she works from 10:00 a.m. - 7:00 p.m. rather than 9:00 a.m. - 6:00 p.m. In this situation, the employer could grant the adjustment in hours because it would not significantly disrupt the operations of the business. The effect of the reasonable accommodation would be to alter when the group worked together and when they performed their individual assignments.

Can an employer deny a request for leave when an employee cannot provide a fixed date of return?

Providing leave to an employee who is unable to provide a fixed date of return is a form of reasonable accommodation. However, if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave. In certain circumstances, undue hardship will derive from the disruption to the operations of the entity that occurs because the employer can neither plan for the employee's return nor permanently fill the position. If an employee cannot provide a fixed date of return, and an employer determines that it can grant such leave at that time without causing undue hardship, the employer has the right to require, as part of the interactive process, that the employee provide periodic updates on his/her condition and possible date of return. After receiving these updates, employers may reevaluate whether continued leave constitutes an undue hardship.

In certain situations, an employee may be able to provide only an approximate date of return. (119) Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. In such situations, or in situations in which a return date must be postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and discuss, if necessary, the need for continued leave beyond what might have been granted originally. (120)

Example A: An experienced chef at a top restaurant requests leave for treatment of her disability but cannot provide a fixed date of return. The restaurant can show that this request constitutes undue hardship because of the difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves the employer unable to determine how long it must hold open the position or to plan for the chef's absence. Therefore, the restaurant can deny the request for leave as a reasonable accommodation.

Example B: An employee requests eight weeks of leave for surgery for his disability. The employer grants the request. During surgery, serious complications arise that require a lengthier period of recuperation than originally anticipated, as well as additional surgery. The employee contacts the employer after three weeks of leave to ask for an additional ten to fourteen weeks of leave (i.e., a total of 18 to 22 weeks of leave). The employer must assess whether granting additional leave causes an undue hardship.

Does a cost-benefit analysis determine whether a reasonable accommodation will cause undue hardship?

No. A cost-benefit analysis assesses the cost of a reasonable accommodation in relation to the perceived benefit to the employer and the employee. Neither the statute nor the legislative history supports a cost-benefit analysis to determine whether a specific accommodation causes an undue hardship. (121) Whether the cost of a reasonable accommodation imposes an undue hardship depends on the employer's resources, not on the individual's salary, position, or status (e.g., full-time versus part-time, salary versus hourly wage, permanent versus temporary).

Can an employer claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else?

No, an employer cannot claim undue hardship solely because a reasonable accommodation would require it to make changes to property owned by someone else. In some situations, an employer will have the right under a lease or other contractual relationship with the property owner to make the type of changes that are needed. If this is the case, the employer should make the changes, assuming no other factors exist that would make the changes too difficult or costly. If the contractual relationship between the employer and property owner requires the owner's consent to the kinds of changes that are required, or prohibits them from being made, then the employer must make good faith efforts either to obtain the owner's permission or to negotiate an exception to the terms of the contract. If the owner refuses to allow the employer to make the modifications, the employer may claim undue hardship. Even in this situation, however, the employer must still provide another reasonable accommodation, if one exists, that would not cause undue hardship.

Example A: X Corp., a travel agency, leases space in a building owned by Z Co. One of X Corp.'s employees becomes disabled and needs to use a wheelchair. The employee requests as a reasonable accommodation that several room dividers be moved to make his work space easily accessible. X Corp.'s lease specifically allows it to make these kinds of physical changes, and they are otherwise easy and inexpensive to make. The fact that X Corp. does not own the property does not create an undue hardship and therefore it must make the requested accommodation.

Example B: Same as Example A, except that X Corp.'s lease requires it to seek Z Co.'s permission before making any physical changes that would involve reconfiguring office space. X Corp. requests that Z Co. allow it to make the changes, but Z Co. denies the request. X Corp. can claim that making the physical changes would constitute an undue hardship. However, it must provide any other type of reasonable accommodation that would not involve making physical changes to the facility, such as finding a different location within the office that would be accessible to the employee.

An employer should remember its obligation to make reasonable accommodation when it is negotiating contracts with property owners. (122) Similarly, a property owner should carefully assess a request from an employer to make physical changes that are needed as a reasonable accommodation because failure to permit the modification might constitute "interference" with the rights of an employee with a disability. (123) In addition, other ADA provisions may require the property owner to make the modifications. (124)

In US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516 (2002), the Supreme Court laid out the burdens of proof for an individual with a disability (plaintiff) and an employer (defendant) in an ADA lawsuit alleging failure to provide reasonable accommodation. The "plaintiff/employee (to defeat a defendant/employer's motion for summary judgment) need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." (125) Once the plaintiff has shown that the accommodation s/he needs is "reasonable," the burden shifts to the defendant/employer to provide case-specific evidence proving that reasonable accommodation would cause an undue hardship in the particular circumstances. (126)

The Supreme Court's burden-shifting framework does not affect the interactive process triggered by an individual's request for accommodation. (127) An employer should still engage in this informal dialogue to obtain relevant information needed to make an informed decision.

When assessing whether a Respondent has violated the ADA by denying a reasonable accommodation to a Charging Party, investigators should consider the following:

  • Is the Charging Party "otherwise qualified" (i.e., is the Charging Party qualified for the job except that, because of disability, s/he needs a reasonable accommodation to perform the position's essential functions)?
  • Did the Respondent request documentation of the Charging Party's disability and/or functional limitations? If yes, was the documentation provided? Did the Respondent have a legitimate reason for requesting documentation? [see Questions 6-8]
  • What specific type of reasonable accommodation, if any, did the Charging Party request?
  • Was there a nexus between the reasonable accommodation requested and the functional limitations resulting from the Charging Party's disability? [see Question 6]
  • Was the need for reasonable accommodation related to the use of medication, side effects from treatment, or symptoms related to a disability? [see Questions 36-38]
  • for the application process? [see Questions 12-13]
  • in connection with aspects of job performance? [see Questions 16-24, 32-33]
  • in order to enjoy the benefits and privileges of employment? [see Questions 14-15]
  • Should the Respondent have initiated the interactive process, or provided a reasonable accommodation, even if the Charging Party did not ask for an accommodation? [see Questions 11, 39]
  • What did the Respondent do in response to the Charging Party's request for reasonable accommodation (i.e., did the Respondent engage in an interactive process with the Charging Party and if so, describe both the Respondent's and the Charging Party's actions/statements during this process)? [see Questions 5-11]
  • If the Charging Party asked the Respondent for a particular reasonable accommodation, and the Respondent provided a different accommodation, why did the Respondent provide a different reasonable accommodation than the one requested by the Charging Party? Why does the Respondent believe that the reasonable accommodation it provided was effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity? Why does the Charging Party believe that the reasonable accommodation provided by the Respondent was ineffective? [see Question 9]
  • What type of accommodation could the Respondent have provided that would have been "reasonable" and effective in eliminating the workplace barrier at issue, thus providing the Charging Party with an equal employment opportunity?
  • Does the charge involve allegations concerning reasonable accommodation and violations of any conduct rules? [see Questions 34-35]
  • did the Respondent and the Charging Party first discuss other forms of reasonable accommodation that would enable the Charging Party to remain in his/her current position before discussing reassignment?
  • did the Respondent have any vacant positions? [see Question 27]
  • did the Respondent notify the Charging Party about possible vacant positions? [see Question 28]
  • was the Charging Party qualified for a vacant position?
  • if there was more than one vacant position, did the Respondent place the Charging Party in the one that was most closely equivalent to the Charging Party's original position?
  • if the reassignment would conflict with a seniority system, are there "special circumstances" that would make it "reasonable" to reassign the Charging Party? [see Question 31]
  • what evidence has the Respondent produced showing that providing a specific reasonable accommodation would entail significant difficulty or expense?
  • if a modified schedule or leave is the reasonable accommodation, is undue hardship based on the impact on the ability of other employees to do their jobs? [see Question 42]
  • if leave is the reasonable accommodation, is undue hardship based on the amount of leave requested? [see Question 43]
  • if there are "special circumstances" that would make it "reasonable" to reassign the Charging Party, despite the apparent conflict with a seniority system, would it nonetheless be an undue hardship to make the reassignment? [see Question 31]
  • is undue hardship based on the fact that providing the reasonable accommodation requires changes to property owned by an entity other than the Respondent? [see Question 46]
  • if the Respondent claims that a particular reasonable accommodation would result in undue hardship, is there another reasonable accommodation that Respondent could have provided that would not have resulted in undue hardship?
  • Based on the evidence obtained in answers to the questions above, is the Charging Party a qualified individual with a disability (i.e., can the Charging Party perform the essential functions of the position with or without reasonable accommodation)?

APPENDIX   RESOURCES FOR LOCATING REASONABLE ACCOMMODATIONS

U.S. Equal Employment Opportunity Commission  1-800-669-3362 (Voice)  1-800-800-3302 (TT)

The EEOC's Publication Center has many free documents on the Title I employment provisions of the ADA, including both the statute, 42 U.S.C. . 12101 et seq. (1994), and the regulations, 29 C.F.R. . 1630 (1997). In addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue hardship. The two main sources of interpretive information are: (1) the Interpretive Guidance accompanying the Title I regulations (also known as the "Appendix" to the regulations), 29 C.F.R. pt. 1630 app. .. 1630.2(o), (p), 1630.9 (1997) , and (2) A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a 200-page Resource Directory, including federal and state agencies, and disability organizations that can provide assistance in identifying and locating reasonable accommodations.

The EEOC also has discussed issues involving reasonable accommodation in the following guidances and documents: (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 7192-94, 7201 (1995); (2) Enforcement Guidance: Workers' Compensation and the ADA at 15-20, 8 FEP Manual (BNA) 405:7391, 7398-7401 (1996); (3) Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); and (4) Fact Sheet on the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996).

Finally, the EEOC has a poster that employers and labor unions may use to fulfill the ADA's posting requirement.

All of the above-listed documents, with the exception of the ADA Technical Assistance Manual and Resource Directory and the poster, are also available through the Internet at https://www.eeoc.gov.

U.S. Department of Labor  (To obtain information on the Family and Medical Leave Act)  To request written materials:  1-800-959-3652 (Voice)  1-800-326-2577 (TT)  To ask questions: (202) 219-8412 (Voice)

Internal Revenue Service  (For information on tax credits and deductions for providing certain reasonable accommodations)

(202) 622-6060 (Voice)

Job Accommodation Network (JAN)  1-800-232-9675 (Voice/TT)  http://janweb.icdi.wvu.edu/.

A service of the President's Committee on Employment of People with Disabilities. JAN can provide information, free-of-charge, about many types of reasonable accommodations.

ADA Disability and Business Technical Assistance Centers (DBTACs) 1-800-949-4232 (Voice/TT)

The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other professional networks to provide current ADA information and assistance, and places special emphasis on meeting the needs of small businesses. The DBTACs can make referrals to local sources of expertise in reasonable accommodations.

Registry of Interpreters for the Deaf  (301) 608-0050 (Voice/TT)

The Registry offers information on locating and using interpreters and transliteration services.

RESNA Technical Assistance Project  (703) 524-6686 (Voice)  (703) 524-6639 (TT)  http://www.resna.org/hometa1.htm

RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals to projects in all 50 states and the six territories offering technical assistance on technology-related services for individuals with disabilities. Services may include:

  • information and referral centers to help determine what devices may assist a person with a disability (including access to large data bases containing information on thousands of commercially available assistive technology products),
  • centers where individuals can try out devices and equipment,
  • assistance in obtaining funding for and repairing devices, and
  • equipment exchange and recycling programs.

The index applies to the print version. Since page numbering does not exist in HTML files, page numbers have been removed.

Applicants and reasonable accommodation

Attendance and reasonable accommodation

Benefits and privileges of employment and reasonable accommodation

Access to information

Employer-sponsored services

Employer-sponsored social functions

Employer-sponsored training

Burdens of proof

Choosing between two or more reasonable accommodations

Conduct rules

Confidentiality and reasonable accommodation

Disparate treatment (versus reasonable accommodation)

Employees (part-time, full-time, probationary)

Essential functions and reasonable accommodation

Family and Medical Leave Act (FMLA); Relationship with the ADA

Firm choice and reasonable accommodation (See also "Last chance agreements")

Interactive process between employer and individual with a disability to determine reasonable accommodation

Landlord/Tenant and reasonable accommodation

Last chance agreements and reasonable accommodation (See also "Firm choice")

Marginal functions and reasonable accommodation

Medical treatment and reasonable accommodation

Employer monitoring of medical treatment

Failure to obtain medical treatment

Side effects of medical treatment and need for reasonable accommodation

Medication and reasonable accommodation

Employer monitoring of medication

Failure to use medication

Side effects of medication and need for reasonable accommodation

Personal use items and reasonable accommodation

Production standards and reasonable accommodation

Public accommodation and employer; who provides reasonable accommodation

"Reasonable accommodation" (definition of)

Reasonable accommodation (effectiveness of)

Reasonable accommodation (how many must employer provide)

Reasonable accommodation (types of)

Access to equipment and computer technology

Changing tests and training materials

Job restructuring

Alternatives to leave

Approximate versus fixed date of return

Family and Medical Leave Act (FMLA)

Holding open an employee's position

"No-fault" leave policies

Penalizing employees who take leave

Marginal functions (modifying how they are performed; elimination or substitution of)

Modified or part-time schedule

Modifying method of performing job function

Modifying workplace policies

Reassignment

Employee must be qualified for vacant position

Equivalent position

Interactive process between employer and employee

Relationship between reassignment and general transfer policies

Salary for new position

Seniority systems and reassignment

Vacant position

When must reassignment be offered

Who is entitled to reassignment

Sign language interpreters

Supervisory methods (changing)

Working at home

Reasonable accommodation (who is entitled to receive)

Rehabilitation Act of 1973; Relationship with the ADA

Relationship and association with a person with a disability

Requests for reasonable accommodation

Documentation on the need for reasonable accommodation

How to request reasonable accommodation

Interactive process between employer and individual with a disability

Timing of employer's response to a request for reasonable accommodation

When should individual with disability request reasonable accommodation

Who may request reasonable accommodation

Right of individual with a disability to refuse reasonable accommodation

Role of health care providers in reasonable accommodation process

State or local antidiscrimination laws; Relationship with the ADA

Supervisors and reasonable accommodation

Undue hardship

Cost-benefit analysis

Definition of

Disruption to operations

Factors to assess

Landlord/Tenant

Work environment and reasonable accommodation

1. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended).

The analysis in this guidance applies to federal sector complaints of non-affirmative action employment discrimination arising under section 501 of the Rehabilitation Act of 1973. 29 U.S.C. § 791(g) (1994). It also applies to complaints of non-affirmative action employment discrimination arising under section 503 and employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C. §§ 793(d), 794(d) (1994).

The ADA's requirements regarding reasonable accommodation and undue hardship supercede any state or local disability antidiscrimination laws to the extent that they offer less protection than the ADA. See 29 C.F.R. § 1630.1(c)(2) (1997).

2. In addition to employers, the ADA requires employment agencies, labor organizations, and joint labor-management committees to provide reasonable accommodations. See 42 U.S.C. § 12112(a), (b)(5)(A) (1994).

3. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

4. 29 C.F.R. § 1630.2(o)(1)(i-iii) (1997) (emphasis added). The notices that employers and labor unions must post informing applicants, employees, and members of labor organizations of their ADA rights must include a description of the reasonable accommodation requirement. These notices, which must be in an accessible format, are available from the EEOC. See the Appendix.

5. All examples used in this document assume that the applicant or employee has an ADA "disability."

Individuals with a relationship or association with a person with a disability are not entitled to receive reasonable accommodations. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1084, 7 AD Cas. (BNA) 764, 772 (10th Cir. 1997).

6. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also H.R. Rep. No. 101-485, pt. 3, at 39 (1990) [hereinafter House Judiciary Report]; H.R. Rep. No. 101-485, pt. 2, at 65 (1990) [hereinafter House Education and Labor Report]; S. Rep. No. 101-116, at 34 (1989)[hereinafter Senate Report].

For more information concerning requests for a reasonable accommodation, see Questions 1-4, infra. For a discussion of the limited circumstance under which an employer would be required to ask an individual with a disability whether s/he needed a reasonable accommodation, see Question 40, infra.

7. 42 U.S.C. § 12111(9) (1994); 29 C.F.R. § 1630.2(o)(2)(i-ii) (1997).

8. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

Some courts have said that in determining whether an accommodation is "reasonable," one must look at the costs of the accommodation in relation to its benefits. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995). This "cost/benefit" analysis has no foundation in the statute, regulations, or legislative history of the ADA. See 42 U.S.C. § 12111(9), (10) (1994); 29 C.F.R. § 1630.2(o), (p) (1997); see also Senate Report, supra note 6, at 31-35; House Education and Labor Report, supra note 6, at 57-58.

10. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1522 (2002). The Court explained that "in ordinary English the word 'reasonable' does not mean 'effective.' It is the word 'accommodation,' not the word 'reasonable,' that conveys the need for effectiveness." Id.

11. A TTY is a device that permits individuals with hearing and speech impairments to communicate by telephone.

12. In US Airways, Inc. v. Barnett, the Supreme Court held that it was unreasonable, absent "special circumstances," for an employer to provide a reassignment that conflicts with the terms of a seniority system. 535 U.S., 122 S. Ct. 1516, 1524-25 (2002). For a further discussion of this issue, see Question 31, infra.

13. "[W]ith or without reasonable accommodation" includes, if necessary, reassignment to a vacant position. Thus, if an employee is no longer qualified because of a disability to continue in his/her present position, an employer must reassign him/her as a reasonable accommodation. See the section on "Reassignment," infra pp. 37-38 and n.77.

14. 29 C.F.R. pt. 1630 app. § 1630.2(n) (1997).

15. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

16. See 42 U.S.C. § 12112 (b)(5)(A) (1994) (it is a form of discrimination to fail to provide a reasonable accommodation "unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . ."); see also 42 U.S.C.

§ 12111(10) (1994) (defining "undue hardship" based on factors assessing cost and difficulty).

The legislative history discusses financial, administrative, and operational limitations on providing reasonable accommodations only in the context of defining "undue hardship." Compare Senate Report, supra note 6, at 31-34 with 35-36; House Education and Labor Report, supra note 6, at 57-58 with 67-70.

17. See 42 U.S.C. § 12111(10) (1994); 29 C.F.R. § 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

18. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997). See also Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1048-49, 5 AD Cas. (BNA) 1367, 1372-73 (7th Cir. 1996); Bryant v. Better Business Bureau of Maryland, 923 F. Supp. 720, 740, 5 AD Cas. (BNA) 625, 638 (D. Md. 1996).

19. See, e.g., Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) ("statute does not require the plaintiff to speak any magic words. . . The employee need not mention the ADA or even the term 'accommodation.'"). See also Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694, 8 AD Cas. (BNA) 875, 882 (7th Cir. 1998) ("[a] request as straightforward as asking for continued employment is a sufficient request for accommodation"); Bultemeyer v. Ft. Wayne Community Schs., 100 F.3d 1281, 1285, 6 AD Cas. (BNA) 67, 71 (7th Cir. 1996) (an employee with a known psychiatric disability requested reasonable accommodation by stating that he could not do a particular job and by submitting a note from his psychiatrist); McGinnis v. Wonder Chemical Co., 5 AD Cas. (BNA) 219 (E.D. Pa. 1995) (employer on notice that accommodation had been requested because: (1) employee told supervisor that his pain prevented him from working and (2) employee had requested leave under the Family and Medical Leave Act).

Nothing in the ADA requires an individual to use legal terms or to anticipate all of the possible information an employer may need in order to provide a reasonable accommodation. The ADA avoids a formulistic approach in favor of an interactive discussion between the employer and the individual with a disability, after the individual has requested a change due to a medical condition. Nevertheless, some courts have required that individuals initially provide detailed information in order to trigger the employer's duty to investigate whether reasonable accommodation is required. See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1660 (5th Cir. 1996); Miller v. Nat'l Cas. Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090-91 (8th Cir. 1995).

20. See Questions 5 - 7, infra, for a further discussion on when an employer may request reasonable documentation about a person's "disability" and the need for reasonable accommodation.

21. Cf. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 5 AD Cas. (BNA) 304 (7th Cir. 1996); Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146 (D. Or. 1994). But see Miller v. Nat'l Casualty Co., 61 F.3d 627, 630, 4 AD Cas. (BNA) 1089, 1091 (8th Cir. 1995) (employer had no duty to investigate reasonable accommodation despite the fact that the employee's sister notified the employer that the employee "was mentally falling apart and the family was trying to get her into the hospital").

The employer should be receptive to any relevant information or requests it receives from a third party acting on the individual's behalf because the reasonable accommodation process presumes open communication in order to help the employer make an informed decision. See 29 C.F.R. §§ 1630.2(o), 1630.9 (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997).

22. Although individuals with disabilities are not required to keep records, they may find it useful to document requests for reasonable accommodation in the event there is a dispute about whether or when they requested accommodation. Employers, however, must keep all employment records, including records of requests for reasonable accommodation, for one year from the making of the record or the personnel action involved, whichever occurs later. If a charge is filed, records must be preserved until the charge is resolved. 29 C.F.R. § 1602.14 (1997).

23. Cf. Masterson v. Yellow Freight Sys., Inc., Nos. 98-6126, 98-6025, 1998 WL 856143 (10th Cir. Dec. 11, 1998) (fact that an employee with a disability does not need a reasonable accommodation all the time does not relieve employer from providing an accommodation for the period when he does need one).

24. See 29 C.F.R. § 1630.2(o)(3) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see also Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601, 8 AD Cas. (BNA) 692, 700 (7th Cir. 1998); Dalton v. Subaru-Isuzu, 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998). The appendix to the regulations at § 1630.9 provides a detailed discussion of the reasonable accommodation process.

Engaging in an interactive process helps employers to discover and provide reasonable accommodation. Moreover, in situations where an employer fails to provide a reasonable accommodation (and undue hardship would not be a valid defense), evidence that the employer engaged in an interactive process can demonstrate a "good faith" effort which can protect an employer from having to pay punitive and certain compensatory damages. See 42 U.S.C. § 1981a(a)(3) (1994).

25. The burden-shifting framework outlined by the Supreme Court in US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002), does not affect the interactive process between an employer and an individual seeking reasonable accommodation. See pages 61-62, infra, for a further discussion.

26. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997). The Appendix to this Guidance provides a list of resources to identify possible accommodations.

27. 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7191, 7193 (1995) [hereinafter Preemployment Questions and Medical Examinations]; EEOC Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 22-23, 8 FEP Manual (BNA) 405:7461, 7472-73 (1997) [hereinafter ADA and Psychiatric Disabilities]. Although the latter Enforcement Guidance focuses on psychiatric disabilities, the legal standard under which an employer may request documentation applies to disabilities generally.

When an employee seeks leave as a reasonable accommodation, an employer's request for documentation about disability and the need for leave may overlap with the certification requirements of the Family and Medical Leave Act (FMLA), 29 C.F.R. §§ 825.305-.306, 825.310-.311 (1997).

28. Since a doctor cannot disclose information about a patient without his/her permission, an employer must obtain a release from the individual that will permit his/her doctor to answer questions. The release should be clear as to what information will be requested. Employers must maintain the confidentiality of all medical information collected during this process, regardless of where the information comes from. See Question 42 and note 111, infra.

29. See Question 9, infra, for information on choosing between two or more effective accommodations.

30. This employee also might be covered under the Family and Medical Leave Act, and if so, the employer would need to comply with the requirements of that statute.

31. See Templeton v. Neodata Servs., Inc., No. 98-1106, 1998 WL 852516 (10th Cir. Dec. 10, 1998); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134, 5 AD Cas. (BNA) 304, 307 (7th Cir. 1996); McAlpin v. National Semiconductor Corp., 921 F. Supp. 1518, 1525, 5 AD Cas. (BNA) 1047, 1052 (N.D. Tex. 1996).

32. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 887 (7th Cir. 1998).

33. If an individual provides sufficient documentation to show the existence of an ADA disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual see the employer's health professional could be considered retaliation.

34. Employers also may consider alternatives like having their health professional consult with the individual's health professional, with the employee's consent.

35. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86, 6 AD Cas. (BNA) 1834, 1839 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 F.3d 797, 800, 5 AD Cas. (BNA) 924, 926-27 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

36. 29 C.F.R. pt. 1630 app. §1630.9 (1997).

37. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998).

38. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide.

39. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also Hankins v. The Gap, Inc., 84 F.3d 797, 801, 5 AD Cas. (BNA) 924, 927 (6th Cir. 1996).

40. 42 U.S.C. § 12112(d)(2)(A) (1994); 29 C.F.R. § 1630.13(a) (1997). For a thorough discussion of these requirements, see Preemployment Questions and Medical Examinations, supra note 27, at 6-8, 8 FEP Manual (BNA) 405:7193-94.

41. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b) (1997); see also Preemployment Questions and Medical Examinations, supra note 27, at 20, 8 FEP Manual (BNA) 405:7201.

42. See Question 12, supra, for the circumstances under which an employer may ask an applicant whether s/he will need reasonable accommodation to perform specific job functions.

43. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause undue hardship.

44. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

45. 42 U.S.C. §§ 12181(7), 12182(1)(A), (2)(A)(iii) (1994).

46. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause undue hardship.

The types of reasonable accommodations discussed in this section are not exhaustive. For example, employees with disabilities may request reasonable accommodations to modify the work environment, such as changes to the ventilation system or relocation of a work space.

See the Appendix for additional resources to identify other possible reasonable accommodations.

47. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. pt. 1630 app. §§ 1630.2(o), 1630.9 (1997); see Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112-13, 4 AD Cas. (BNA) 1234, 1236-37 (8th Cir. 1995).

48. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782, 8 AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

An employee who needs leave, or a part-time or modified schedule, as a reasonable accommodation also may be entitled to leave under the Family and Medical Leave Act. See Questions 21 and 23, infra.

49. See A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, at 3.10(4), 8 FEP Manual (BNA) 405:6981, 7011 (1992) [hereinafter TAM].

50. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002). See also Question 24, infra. While undue hardship cannot be based solely on the existence of a no-fault leave policy, the employer may be able to show undue hardship based on an individualized assessment showing the disruption to the employer's operations if additional leave is granted beyond the period allowed by the policy. In determining whether undue hardship exists, the employer should consider how much additional leave is needed (e.g., two weeks, six months, one year?).

51. See Schmidt v. Safeway Inc., 864 F. Supp. 991, 996-97, 3 AD Cas. (BNA) 1141, 1145-46 (D. Or. 1994); Corbett v. National Products Co., 4 AD Cas. (BNA) 987, 990 (E.D. Pa. 1995).

52. See EEOC Enforcement Guidance: Workers' Compensation and the ADA at 16, 8 FEP Manual (BNA) 405:7391, 7399 (1996) [hereinafter Workers' Compensation and the ADA]. See also pp. 37-45, infra, for information on reassignment as a reasonable accommodation.

53. Cf. Kiel v. Select Artificials, 142 F.3d 1077, 1080, 8 AD Cas. (BNA) 43, 44 (8th Cir. 1998).

54. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

55. But see Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1197-98, 7 AD Cas. (BNA) 1651, 1653-54 (7th Cir. 1997) (an employee who, because of a heart attack, missed several months of work and returned on a part-time basis until health permitted him to work full-time, could be terminated during a RIF based on his lower productivity). In reaching this decision, the Seventh Circuit failed to consider that the employee needed leave and a modified schedule as reasonable accommodations for his disability, and that the accommodations became meaningless when he was penalized for using them.

56. If an employee, however, qualifies for leave under the Family and Medical Leave Act, an employer may not require him/her to remain on the job with an adjustment in lieu of taking leave. See 29 C.F.R. § 825.702(d)(1) (1997).

57. See Question 9, supra.

58. For more detailed information on issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet listed in the Appendix.

59. Employers should remember that many employees eligible for FMLA leave will not be entitled to leave as a reasonable accommodation under the ADA, either because they do not meet the ADA's definition of disability or, if they do have an ADA disability, the need for leave is unrelated to that disability.

60. 29 C.F.R. §§ 825.214(a), 825.215 (1997).

61. For further information on the undue hardship factors, see infra pp. 55-56.

62. 29 C.F.R. § 825.702(c)(4) (1997).

63. 42 U.S.C. §12111 (9) (B) (1994); see Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 172, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998) (a modified schedule is a form of reasonable accommodation).

64. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002).

65. Certain courts have characterized attendance as an "essential function." See, e.g., Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 438 (D.C. Cir. 1994); Jackson v. Department of Veterans Admin., 22 F.3d 277, 278-79, 3 AD Cas. (BNA) 483, 484 (11th Cir. 1994). Attendance, however, is not an essential function as defined by the ADA because it is not one of "the fundamental job duties of the employment position." 29 C.F.R. § 1630.2(n)(1) (1997) (emphasis added). As the regulations make clear, essential functions are duties to be performed. 29 C.F.R. § 1630.2(n)(2) (1997). See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602, 8 AD Cas. (BNA) 692, 701 (7th Cir. 1998); Cehrs v. Northeast Ohio Alzheimer's, 155 F.3d 775, 782-83, 8 AD Cas. (BNA) 825, 830-31 (6th Cir. 1998).

On the other hand, attendance is relevant to job performance and employers need not grant all requests for a modified schedule. To the contrary, if the time during which an essential function is performed is integral to its successful completion, then an employer may deny a request to modify an employee's schedule as an undue hardship.

66. Employers covered under the Family and Medical Leave Act (FMLA) should determine whether any denial of leave or a modified schedule is also permissible under that law. See 29 C.F.R. § 825.203 (1997).

67. For more detailed information on issues raised by the interplay between these statutes, refer to the FMLA/ADA Fact Sheet listed in the Appendix.

68. See infra pp. 37-45 for more information on reassignment, including under what circumstances an employer and employee may voluntarily agree that a transfer is preferable to having the employee remain in his/her current position.

69. 29 C.F.R. § 825.204 (1997); see also special rules governing intermittent leave for instructional employees at §§ 825.601, 825.602.

70. 29 C.F.R. §§ 825.209, 825.210 (1997).

71. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521 (2002).

72. See Dutton v. Johnson County Bd. of Comm'rs, 868 F. Supp. 1260, 1264-65, 3 AD Cas. (BNA) 1614, 1618 (D. Kan. 1994).

73. See 29 C.F.R. pt. 1630 app. § 1630.15(b), (c) (1997). See also Question 17, supra.

74. But cf. Miller v. Nat'l Casualty Co., 61 F.3d 627, 629-30, 4 AD Cas. (BNA) 1089, 1090 (8th Cir. 1995) (court refuses to find that employee's sister had requested reasonable accommodation despite the fact that the sister informed the employer that the employee was having a medical crisis necessitating emergency hospitalization).

75. For information on how reassignment may apply to employers who provide light duty positions, see Workers' Compensation and the ADA, supra note 52, at 20-23, 8 FEP Manual (BNA) 405:7401-03.

76. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997). See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114, 4 AD Cas. (BNA) 1234, 1238 (8th Cir. 1995); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187, 5 AD Cas. (BNA) 1326, 1338 (6th Cir. 1996); Gile v. United Airlines, Inc., 95 F.3d 492, 498, 5 AD Cas. (BNA) 1466, 1471 (7th Cir. 1996).

Reassignment is available only to employees, not to applicants. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

77. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas. (BNA) 1297, 1305 (S.D. Ga. 1995).

Some courts have found that an employee who is unable to perform the essential functions of his/her current position is unqualified to receive a reassignment. See, e.g., Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 345, 5 AD Cas. (BNA) 1340, 1342 (7th Cir. 1996); Pangalos v. Prudential Ins. Co. of Am., 5 AD Cas. (BNA) 1825, 1826 (E.D. Pa. 1996). These decisions, however, nullify Congress' inclusion of reassignment in the ADA. An employee requires a reassignment only if s/he is unable to continue performing the essential functions of his/her current position, with or without reasonable accommodation. Thus, an employer must provide reassignment either when reasonable accommodation in an employee's current job would cause undue hardship or when it would not be possible. See Aka v. Washington Hosp. Ctr.,156 F.3d 1284, 1300-01, 8 AD Cas. (BNA) 1093, 1107-08 (D.C. Cir. 1998); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA) 1872, 1880 (7th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 28, 8 FEP Manual (BNA) 405:7476; Workers' Compensation and the ADA, supra note 52, at 17-18, 8 FEP Manual (BNA) 405:7399-7400.

78. 29 C.F.R. § 1630.2(m) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(m), 1630.2(o)(1997). See Stone v. Mount Vernon, 118 F.3d 92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997).

79. See Quintana v. Sound Distribution Corp., 6 AD Cas. (BNA) 842, 846 (S.D.N.Y. 1997).

80. See 29 C.F.R. pt. 1630 app. §1630.2(o) (1997); Senate Report, supra note 6, at 31; House Education and Labor Report, supra note 6, at 63.

81. For suggestions on what the employee can do while waiting for a position to become vacant within a reasonable amount of time, see note 89, infra.

82. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see also White v. York Int'l Corp., 45 F.3d 357, 362, 3 AD Cas. (BNA) 1746, 1750 (10th Cir. 1995).

83. See 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

84. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1521, 1524 (2002); see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998); United States v. Denver, 943 F. Supp. 1304, 1312, 6 AD Cas. (BNA) 245, 252 (D. Colo. 1996). See also Question 24, supra.

85. 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997); see Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695, 8 AD Cas. (BNA) 875, 883 (7th Cir. 1998); see generally Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78, 7 AD Cas. (BNA) 1872, 1880-81 (7th Cir. 1998).

86. See Gile v. United Airlines, Inc., 95 F.3d 492, 499, 5 AD Cas. (BNA) 1466, 1472 (7th Cir. 1996); see generally United States v. Denver, 943 F. Supp. 1304, 1311-13, 6 AD Cas. (BNA) 245, 251-52 (D. Colo. 1996).

Some courts have limited the obligation to provide a reassignment to positions within the same department or facility in which the employee currently works, except when the employer's standard practice is to provide inter-department or inter-facility transfers for all employees. See, e.g., Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398, 4 AD Cas.(BNA) 1, 4-5 (E.D. Tex. 1995). However, the ADA requires modification of workplace policies, such as transfer policies, as a form of reasonable accommodation. See Question 24, supra. Therefore, policies limiting transfers cannot be a per se bar to reassigning someone outside his/her department or facility. \ Furthermore, the ADA requires employers to provide reasonable accommodations, including reassignment, regardless of whether such accommodations are routinely granted to non-disabled employees. See Question 26, supra.

87. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 695-96, 697-98, 8 AD Cas. (BNA) 875, 883, 884 (7th Cir. 1998) (employer cannot mislead disabled employees who need reassignment about full range of vacant positions; nor can it post vacant positions for such a short period of time that disabled employees on medical leave have no realistic chance to learn about them); Mengine v. Runyon, 114 F.3d 415, 420, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (an employer has a duty to make reasonable efforts to assist an employee in identifying a vacancy because an employee will not have the ability or resources to identify a vacant position absent participation by the employer); Woodman v. Runyon, 132 F.3d 1330, 1344, 7 AD Cas. (BNA) 1189, 1199 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions).

88. See Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678, 7 AD Cas. (BNA)1872, 1881 (7th Cir. 1998) (employer must first identify full range of alternative positions and then determine which ones employee qualified to perform, with or without reasonable accommodation); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 700, 8 AD Cas. (BNA) 875, 886-87 (7th Cir. 1998) (employer's methodology to determine if reassignment is appropriate does not constitute the "interactive process" contemplated by the ADA if it is directive rather than interactive); Mengine v. Runyon, 114 F.3d 415, 419-20, 6 AD Cas. (BNA) 1530, 1534 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing).

89. If it will take several weeks to determine whether an appropriate vacant position exists, the employer and employee should discuss the employee's status during that period. There are different possibilities depending on the circumstances, but they may include: use of accumulated paid leave, use of unpaid leave, or a temporary assignment to a light duty position. Employers also may choose to take actions that go beyond the ADA's requirements, such as eliminating an essential function of the employee's current position, to enable an employee to continue working while a reassignment is sought.

90. 42 U.S.C. § 12111(9)(b) (1994); 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997). See Senate Report, supra note 6, at 31 ("If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker."). See Wood v. County of Alameda, 5 AD Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer perform job because of disability, she was entitled to reassignment to a vacant position, not simply an opportunity to "compete"); cf. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the court, in interpreting a collective bargaining agreement provision authorizing reassignment of disabled employees, states that "[a]n employee who is allowed to compete for jobs precisely like any other applicant has not been "reassigned"); United States v. Denver, 943 F. Supp. 1304, 1310-11, 6 AD Cas. (BNA) 245, 250 (D. Colo. 1996) (the ADA requires employers to move beyond traditional analysis and consider reassignment as a method of enabling a disabled worker to do a job).

Some courts have suggested that reassignment means simply an opportunity to compete for a vacant position. See, e.g., Daugherty v. City of El Paso, 56 F.3d 695, 700, 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an interpretation nullifies the clear statutory language stating that reassignment is a form of reasonable accommodation. Even without the ADA, an employee with a disability may have the right to compete for a vacant position.

91. 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).

92. See US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1524-25 (2002).

94. Id. at 1525. In a lawsuit, the plaintiff/employee bears the burden of proof to show the existence of "special circumstances" that warrant a jury's finding that a reassignment is "reasonable" despite the presence of a seniority system. If an employee can show "special circumstances," then the burden shifts to the employer to show why the reassignment would pose an undue hardship. See id.

96. Id. The Supreme Court made clear that these two were examples of "special circumstances" and that they did not constitute an exhaustive list of examples. Furthermore, Justice Stevens, in a concurring opinion, raised additional issues that could be relevant to show special circumstances that would make it reasonable for an employer to make an exception to its seniority system. See id. at 1526.

97. The discussions and examples in this section assume that there is only one effective accommodation and that the reasonable accommodation will not cause an undue hardship.

98. See Ralph v. Lucent Technologies, Inc., 135 F.3d 166, 171, 7 AD Cas. (BNA) 1345, 1349 (1st Cir. 1998).

99. For a discussion on ways to modify supervisory methods, see ADA and Psychiatric Disabilities, supra note 27, at 26-27, 8 FEP Manual (BNA) 405:7475.

100. See 29 C.F.R. § 1630.2(o)(1)(ii), (2)(ii) (1997) (modifications or adjustments to the manner or circumstances under which the position held or desired is customarily performed that enable a qualified individual with a disability to perform the essential functions).

101. Courts have differed regarding whether "work-at-home" can be a reasonable accommodation. Compare Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995). Courts that have rejected working at home as a reasonable accommodation focus on evidence that personal contact, interaction, and coordination are needed for a specific position. See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995), aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).

102. See 29 C.F.R. § 1630.15(d) (1997).

103. See Siefken v. Arlington Heights, 65 F.3d 664, 666, 4 AD Cas. (BNA) 1441, 1442 (7th Cir. 1995). Therefore, it may be in the employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur. For more information on conduct standards, including when they are job-related and consistent with business necessity, see ADA and Psychiatric Disabilities, supra note 27, at 29-32, 8 FEP Manual (BNA) 405:7476-78.

An employer does not have to offer a "firm choice" or a "last chance agreement" to an employee who performs poorly or who has engaged in misconduct because of alcoholism. "Firm choice" or "last chance agreements" involve excusing past performance or conduct problems resulting from alcoholism in exchange for an employee's receiving substance abuse treatment and refraining from further use of alcohol. Violation of such an agreement generally warrants termination. Since the ADA does not require employers to excuse poor performance or violation of conduct standards that are job-related and consistent with business necessity, an employer has no obligation to provide "firm choice" or a "last chance agreement" as a reasonable accommodation. See Johnson v. Babbitt, EEOC Docket No. 03940100 (March 28, 1996). However, an employer may choose to offer an employee a "firm choice" or a "last chance agreement."

104. See ADA and Psychiatric Disabilities, supra note 27, at 31-32, 8 FEP Manual (BNA) 405:7477-78.

105. See Robertson v. The Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998); see also ADA and Psychiatric Disabilities, supra note 27, at 27-28, 8 FEP Manual (BNA) 405:7475.

106. While from an employer's perspective it may appear that an employee is "failing" to use medication or follow a certain treatment, such questions can be complex. There are many reasons why a person would choose to forgo treatment, including expense and serious side effects.

107. See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 544, 3 AD Cas. (BNA) 1636, 1639 (7th Cir. 1995).

108. See 29 C.F.R. pt. 1630 app. § 1630.9 (1997); see also House Judiciary Report, supra note 6, at 39; House Education and Labor Report, supra note 6, at 65; Senate Report, supra note 6, at 34.

See, e.g., Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165, 5 AD Cas. (BNA) 1653, 1659 (5th Cir. 1996); Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996); Cheatwood v. Roanoke Indus., 891 F. Supp. 1528, 1538, 5 AD Cas. (BNA) 141, 147 (N.D. Ala. 1995); Mears v. Gulfstream Aerospace Corp., 905 F. Supp. 1075, 1080, 5 AD Cas. (BNA) 1295, 1300 (S.D. Ga. 1995), aff'd, 87 F.3d 1331, 6 AD Cas. (BNA) 1152 (11th Cir. 1996). But see Schmidt v. Safeway Inc., 864 F. Supp. 991, 997, 3 AD Cas. (BNA) 1141, 1146-47 (D. Or. 1994) (employer had obligation to provide reasonable accommodation because it knew of the employee's alcohol problem and had reason to believe that an accommodation would permit the employee to perform the job).

An employer may not assert that it never received a request for reasonable accommodation, as a defense to a claim of failure to provide reasonable accommodation, if it actively discouraged an individual from making such a request.

For more information about an individual requesting reasonable accommodation, see Questions 1-4, supra.

109. See Question 5, supra, for information on the interactive process.

110. 29 C.F.R. pt. 1630 app. § 1630.9 (1997).

111. 42 U.S.C. § 12112(d)(3)(B), (d)(4)(C) (1994); 29 C.F.R. § 1630.14(b)(1) (1997). The limited exceptions to the ADA confidentiality requirements are:  (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; and (3) government officials investigating compliance with the ADA must be given relevant information on request. In addition, the Commission has interpreted the ADA to allow employers to disclose medical information in the following circumstances: (1) in accordance with state workers' compensation laws, employers may disclose information to state workers' compensation offices, state second injury funds, or workers' compensation insurance carriers; and (2) employers are permitted to use medical information for insurance purposes. See 29 C.F.R. pt. 1630 app. §1630.14(b) (1997); Preemployment Questions and Medical Examinations, supra note 27, at 23, 8 FEP Manual (BNA) 405:7201; Workers' Compensation and the ADA, supra note 52, at 7, 8 FEP Manual (BNA) 405:7394.

112. The discussions and examples in this section assume that there is only one effective accommodation.

113. See 29 C.F.R. pt. 1630 app. §1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997) (an employer who has not hired any persons with disabilities cannot claim undue hardship based on speculation that if it were to hire several people with disabilities it may not have sufficient staff to perform certain tasks); Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp. 720, 735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).

114. See 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997); TAM, supra note 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07.

115. See Senate Report, supra note 6, at 36; House Education and Labor Report, supra note 6, at 69. See also 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997).

116. See the Appendix on how to obtain information about the tax credit and deductions.

117. See 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997).

118. Failure to transfer marginal functions because of its negative impact on the morale of other employees also could constitute disparate treatment when similar morale problems do not stop an employer from reassigning tasks in other situations.

119. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 600-02, 8 AD Cas. (BNA) 692, 699-701 (7th Cir. 1998).

120. See Criado v. IBM, 145 F.3d 437, 444-45, 8 AD Cas. (BNA) 336, 341 (1st Cir. 1998).

121. The ADA's definition of undue hardship does not include any consideration of a cost-benefit analysis. See 42 U.S.C. § 12111(10) (1994); see also House Education and Labor Report, supra note 6, at 69 ("[T]he committee wishes to make clear that the fact that an accommodation is used by only one employee should not be used as a negative factor counting in favor of a finding of undue hardship.").

Furthermore, the House of Representatives rejected a cost-benefit approach by defeating an amendment which would have presumed undue hardship if a reasonable accommodation cost more than 10% of the employee's annual salary. See 136 Cong. Rec. H2475 (1990), see also House Judiciary Report, supra note 6, at 41; 29 C.F.R. pt. 1630 app. § 1630.15(d) (1997).

Despite the statutory language and legislative history, some courts have applied a cost-benefit analysis. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995).

122. See 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (1997) (prohibiting an employer from participating in a contractual relationship that has the effect of subjecting qualified applicants or employees with disabilities to discrimination).

123. See 42 U.S.C. § 12203(b) (1994); 29 C.F.R. § 1630.12(b) (1997).

124. For example, under Title III of the ADA a private entity that owns a building in which goods and services are offered to the public has an obligation, subject to certain limitations, to remove architectural barriers so that people with disabilities have equal access to these goods and services. 42 U.S.C.

§ 12182(b)(2)(A)(iv) (1994). Thus, the requested modification may be something that the property owner should have done to comply with Title III.

125. US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

127. See Questions 5-10 for a discussion of the interactive process.

Job Accommodation Network

The Path to Reassignment as an Accommodation

From the desk of tracie defreitas, m.s., program leader, director of training and outreach.

Engaging in the interactive process under the Americans with Disabilities Act (ADA) requires navigating a range of reasonable accommodation pathways. Some trails lead to familiar places, like making the workplace accessible, job restructuring, or modifying a schedule. Some paths are bumpy, flanked by twists and turns, and require time and patience to reach the destination, like purchasing equipment, modifying workplace policies, or providing access to leave. Sometimes the process requires navigating an entirely different path than was initially mapped-out, like changing lanes and taking the ramp that leads to reassigning an employee to a vacant position. This accommodation pathway is reasonably well-marked under the ADA, but can still lead those responsible for considering the accommodation to second-guess whether it’s the best route – kind of like when you’re relying on your GPS to get you home, but it generates a different route every time and you’re not sure if you can trust it.

The reassignment path can be trusted when exploring job accommodations under the ADA, provided certain rules are followed. The duty to consider reassignment as a form of reasonable accommodation is clearly articulated in the ADA regulations and enforcement guidance. The title I regulations of the ADA specifically include reassignment as an accommodation, and the Equal Employment Opportunity Commission (EEOC) formal enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA notes that this form of accommodation must be considered and provided, when reasonable. Interestingly, even the courts mostly agree with the EEOC position on this accommodation issue. Then why do employers still stumble when they reach the reassignment path as part of the accommodation process?

Likely for a number of reasons, but for one, it probably doesn’t seem logical to give an employee a different job when they can’t perform the essential functions of their current job. But, it’s important to remember that the ADA is meant to facilitate positive employment outcomes for individuals with disabilities. This means that, when a disability prevents an employee from performing the essential job duties of their original position, the possibility of maintaining employment by being placed in a vacant position the employer seeks to fill can lead to a successful employment outcome for all parties. When the interactive process reveals that reassignment is a possible accommodation solution, employers are expected to make that last ditch effort to keep the employee on the path of continued employment.

Reassignment is commonly known as the accommodation of last resort. This is because accommodations that will enable an employee to remain in their current position should, under ordinary circumstances, be considered first. However, this accommodation strategy should not be misinterpreted to mean that it’s only possible to consider reassignment when the search for accommodations in the original position is exhausted. Reassignment can be considered when:

  • there is no reasonable accommodation that will enable an employee with a disability to perform the essential functions of their current position;
  • both the employee and employer agree that an alternative position is a more preferable accommodation solution, in light of the employee’s limitations and ability to perform essential functions, with or without accommodation;
  • an employee is on a leave of absence and their position cannot be held open during the entire leave period without posing an undue hardship, and if there is a vacant position to which the employee can be reassigned to continue the leave; or
  • the location where work is performed causes a work-related barrier due to limitations affecting an employee’s commute, or the need to access specialized healthcare, and there is a vacant position at a different location that meets the employee’s disability-related needs.

What makes reassignment an accommodation under the ADA? The opportunity to be transferred to a new job with the same employer without having to go through the competitive hiring process. An individual with a disability who will be accommodated through reassignment shall not be required to compete for the alternative position. But, while a competitive bid for the vacancy is not required, the individual must be minimally qualified, though not necessarily the best qualified, for any vacant position under consideration, and must be capable of performing the essential functions of the job, with or without accommodation.

The path to reassignment can be bumpy when it’s not clear whose responsibility it is to identify vacant positions, and for what duration the parties will search. This is where it can be useful to have a procedure for processing this type of accommodation request. A procedure can assign organizational responsibility for the job search, and also make clear that the individual is invited to assist in identifying vacancies. The EEOC offers tips for drafting and implementing accommodation procedures, including reassignment procedures, in their guidance on Practical Advice for Drafting and Implementing Reasonable Accommodation Procedures Under Executive Order 13164 . The information in this guidance informs the reasonable accommodation practices of federal government employers, but is a useful resource for other types of employers that must engage in the interactive accommodation process under the ADA.

Employers sometimes ask if an individual who will be reassigned as an accommodation can be expected to formally apply for vacant positions, or to interview for jobs that are selected. The answer to this question probably depends on why the employer wants to require this of someone who is not expected to compete for the job. For example, if the objective of asking the individual interview questions, or to complete an application, is simply to gather information to assess their qualifications and interest in the job, this may be possible. But, if the individual is minimally qualified for the position, they get the job regardless of the interview outcome. An interview may be useful when more than one vacancy has been identified and both the individual and the employer believe the process will present an opportunity to learn more information to determine which position is the best fit.

Upon making the decision to explore reassignment as the accommodation of choice, employers should be mindful of several points. First, reassignment will only be available as an accommodation if a vacant position is available, or will be in the reasonably near future. There is no duty to create a vacancy. The search for vacant positions should include those that are equivalent to the employee’s original position, in terms of pay and status, and does not have to be limited to positions within the employee’s original department or location. When an equivalent vacant position is not available, an individual may be reassigned to a vacant lower level position. In this situation, there is no duty to carry-over the employee’s original rate of pay, unless this is done for others in a similar situation.

Generally, employers are in the best position to know about potential vacancies, but the interactive process is collaborative and so both parties can take part in the job search. The duration of the job search may depend on the size of the employer, but should begin without delay and should be completed in a reasonable period of time. For example, smaller employers may have fewer available positions, and in-turn, may require a shorter duration of time to complete a thorough search. The duration could be days or weeks. Some employers have a policy of searching for a certain number of days (e.g., 30 to 60 days). According to the EEOC, upon the end of a reasonable search period, if no appropriate vacancies have been identified, the employer will have fulfilled its obligation to consider reassignment as an accommodation.

The idea of reassignment as an accommodation raises a number of questions for employers. A lot of ground was covered on this topic in this brief article, but there can be many twists and turns while navigating this path during the interactive process. You may have more questions about reassignment now. The REASSIGNMENT section of the EEOC formal enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA is a good place to start for more information. If you still have questions, Ask JAN , we can help!

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Definition of reassignment noun from the Oxford Advanced Learner's Dictionary

reassignment

  • Her reassignment is part of a new global restructuring.

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Meaning of reassign in English

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  • accommodate
  • accommodate someone with something
  • administration
  • arm someone with something
  • hand something back
  • hand something down
  • hand something in
  • hand something out
  • re-equipment
  • reassignment

reassign | Business English

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/ ( ˌriːəˈsaɪn ) /

to move (personnel, resources, etc) to a new post, department, location, etc

Derived forms of reassign

  • reassignment , noun

Words Nearby reassign

  • reassessment
  • reassortment
  • reassurance

Collins English Dictionary - Complete & Unabridged 2012 Digital Edition © William Collins Sons & Co. Ltd. 1979, 1986 © HarperCollins Publishers 1998, 2000, 2003, 2005, 2006, 2007, 2009, 2012

How to use reassign in a sentence

Leslie H. Gelb on why he must reassign Rahm, dump Larry Summers, and get rid of National Security adviser Jim Jones.

Anyhow, Malone was reasonably sure that he could reassign himself from vacation time, at least until he called Burris.

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  1. Reassign Definition & Meaning

    The meaning of REASSIGN is to assign (something or someone) again especially in a new or different way. How to use reassign in a sentence. ... reassignment (ˌ)rē-ə-ˈsīn-mənt . noun. plural reassignments. requested a dorm room reassignment

  2. REASSIGNMENT

    REASSIGNMENT definition: 1. a process, including medical operations, by which someone's body is changed to match their…. Learn more.

  3. Summary of Reassignment

    Summary of Reassignment. 1. Learning About Reassignment. The reassignment regulations give an agency extensive flexibility in reassigning an employee to a different position. This summary covers the procedures in the reassignment regulations. With this summary, employees, managers, union representatives, and others will have an overview of both ...

  4. Mandatory Reassignment Under the Americans With Disabilities Act: The

    A per se rule precluding reassignment when an employer utilizes a best-qualified hiring policy is unnecessary, however, because the ADA already provides employers with sufficient statutory protections.162 To begin, reassignment is the accommodation of last resort, meaning that employers are only required to consider reassignment when no other ...

  5. reassign verb

    Definition of reassign verb in Oxford Advanced Learner's Dictionary. Meaning, pronunciation, picture, example sentences, grammar, usage notes, synonyms and more. ... -ing form reassigning ... reassignment noun; reassurance noun; craft. noun . From the Topic. Hobbies. B2. Oxford Learner's Dictionaries Word of the Day.

  6. PDF Reassignment of Benefits

    only use the CMS-855I and list his/her active reassignment information in section 4B thereof. The CMS-855R application is required to terminate a reassignment. The termination cannot be done via the CMS-855I form (except for Internet-based PECOS applications when the termination is for the last PTAN on an enrollment).

  7. Reassignment

    The duty to consider reassignment as a form of reasonable accommodation under the ADA is essentially well-defined, but still, questions arise about the level of responsibility employers have when exploring this type of accommodation. For example, questions related to whose responsibility it is to search for vacant positions; the duration of ...

  8. ASSIGNMENT Definition & Usage Examples

    Assignment definition: something assigned, as a particular task or duty. See examples of ASSIGNMENT used in a sentence.

  9. REASSIGN

    REASSIGN meaning: 1. to give someone a different job or position: 2. to give a piece of work to a different person…. Learn more.

  10. Reassign

    reassign: 1 v transfer somebody to a different position or location of work Synonyms: transfer Types: second transfer an employee to a different, temporary assignment exchange hand over one and receive another, approximately equivalent alternate exchange people temporarily to fulfill certain jobs and functions Type of: assign , delegate , ...

  11. Enforcement Guidance on Reasonable Accommodation and Undue Hardship

    Does reassignment mean that the employee is permitted to compete for a vacant position? ... 4 AD Cas. (BNA) 993, 997 (5th Cir. 1995). Such an interpretation nullifies the clear statutory language stating that reassignment is a form of reasonable accommodation. Even without the ADA, an employee with a disability may have the right to compete for ...

  12. REASSIGNMENT definition

    REASSIGNMENT meaning: 1. a process, including medical operations, by which someone's body is changed to match their…. Learn more.

  13. reassign verb

    Definition of reassign verb in Oxford Advanced American Dictionary. Meaning, pronunciation, picture, example sentences, grammar, usage notes, synonyms and more.

  14. The Path to Reassignment as an Accommodation

    Reassignment is commonly known as the accommodation of last resort. This is because accommodations that will enable an employee to remain in their current position should, under ordinary circumstances, be considered first. However, this accommodation strategy should not be misinterpreted to mean that it's only possible to consider ...

  15. reassignment noun

    Definition of reassignment noun in Oxford Advanced Learner's Dictionary. Meaning, pronunciation, picture, example sentences, grammar, usage notes, synonyms and more.

  16. PDF REASSIGNMENT OF MEDICARE BENEFITS HTTPS://PECOS.CMS.HHS

    When establishing a new reassignment, Section 6A must be signed by the individual practitioner . and. Section 6B must be signed by a delegated or authorized official of the organization/group. If the reassignment is to an individual, that person must sign Section 6B. When terminating a reassignment, either. Section 6A . or. Section 6B can be ...

  17. Reassignment

    Define reassignment. reassignment synonyms, reassignment pronunciation, reassignment translation, English dictionary definition of reassignment. tr.v. re·as·signed , re·as·sign·ing , re·as·signs 1. To assign to a new position, duty, or location: reassigned the ambassador to a new post. 2.

  18. REASSIGN

    REASSIGN definition: 1. to give someone a different job or position: 2. to give a piece of work to a different person…. Learn more.

  19. Reassignment

    reassignment: 1 n assignment to a different duty Types: secondment the detachment of a person from their regular organization for temporary assignment elsewhere Type of: assignment , duty assignment a duty that you are assigned to perform (especially in the armed forces)

  20. PDF Transfer vs Reassignment

    Reassignment: A reassignment is when an appointing authority makes changes to an employee's current position. It may result in movement within the same organizational unit or another organizational unit, a change in duties, work location, days of work, or hours of work. A reassignment may involve one or more of the following M5s and/or P1s ...

  21. PDF Motor Vehicle Title Reassignment Supplement

    WHEN SHOULD THIS FORM BE USED? ORM HSMV 82994, MOTOR VEHICLE TITLE REASSIGNMENT SUPPLEMENT,F . MUST BE USED: 1. w ith conforming Florida Certificate(s) of Title to make additional dealer reassignments and odometer disclosures when all reassignment and odometer. d isclosure spaces on the reverse side of the Certificate of Title have been used: OR

  22. REASSIGN Definition & Usage Examples

    Reassign definition: . See examples of REASSIGN used in a sentence.

  23. eCFR :: 5 CFR 317.901 -- Reassignments

    This notice requirement may be waived only when the appointee consents in writing. ( 2) Reassignment outside of a commuting area. For reassignment outside of a commuting area, ( i) the agency must consult with the appointee on the reasons for, and the appointee's preferences with respect to, the proposed reassignment; and. ( ii) following such ...