The statutory duty of employers to reassign disabled employees to vacant positions is mandatory. If a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee along with other applicants; the employer must offer the employee the vacant position. In a number of situations, reassignment would be unreasonable:
- It’s not reasonable to require an employer to create a new job for the purposes of reassigning the employee to this job.
- An employer is not required to reassign a disabled employee to a position that would constitute a promotion.
- An employer is not required to reassign the disabled employee in a way that would contravene the employer’s “important fundamental policies underlying with a legitimate business interest” (a very broad, case-by-case analysis).
- The job for which the disabled employee seeks reassignment must be vacant. In determining when a position is truly vacant, courts have ruled that “a position is ‘vacant’ for the purposes of ADA’s reassignment duty when that position would have been available for a similarly-situation nondisabled employee to apply for and obtain.” For example, if a company uses temp employees and under normal circumstances, nobody could apply for or obtain this job, it’s not considered vacant under the law.