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Jun 12, 2017

Q&A: Employer doesn’t have to promote to accommodate disability

Q&ADisability 

Q: We have a production employee with a medical condition whose doctor said no work “near dust or contaminants.” We tried several options, including buying a respirator and moving her to different positions on the floor. Instead she wants an open sales job that pays more. Do we have to give it to her?

A: No. Your obligation under the Americans with Disabilities Act (ADA) is to reasonably accommodate her disability so that she can perform the essential functions of her job. To figure out what this accommodation might be, you must engage in back-and-forth dialogue with the employee to determine what she needs—usually with help from her doctor—and what you can provide that isn’t an undue hardship to the company. Accommodations can be additional leave, an altered work schedule, special equipment, or, as a last resort, job reassignment.
 
When considering reassignment, you don’t have to create a new job or bump someone else. You simply have to look for open positions of equal pay, status, and benefits for which the employee is qualified. If there aren’t any, then you can consider less senior jobs. According to the Equal Employment Opportunity Commission (EEOC), an employer doesn’t have to reassign employees to positions to which they aren’t qualified or to offer a promotion to a more senior position. In fact, in its Enforcement Guidance: Reasonable Accommodations and Undue Hardship Under the Americans With Disabilities Act, the EEOC states that “an employee must compete for any vacant position that would constitute a promotion.” The EEOC’s stance on reassignment was recently affirmed in federal court. In that case, an assistant principal wanted an open position that met her medical limitation (no contact with “unruly students”) but also was a significant pay bump. The court ultimately found that the assistant principal "failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions” and the school was not required to provide what amounted to a job promotion (Brown v. Milwaukee Board of School Directors, 7th Cir, May 2017). Contact your Vigilant employment attorney if you need help figuring out whether an employee’s request would be considered a promotion, or to see if your interactive process would satisfy an EEOC investigator.

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