Although the U.S. Equal Employment Opportunity Commission (EEOC) has called reassignment an accommodation of last resort under the Americans with Disabilities Act (ADA), transfer shouldn’t be overlooked by employers as a possibility before termination. Sometimes, an employee with a disability might even prefer it.
Calling reassignment an accommodation of last resort “depends on the context,” said Peter Petesch, an attorney with Littler in Washington, D.C. “If the employee brings it up as an option, it is no longer a last resort.”
Reassignment should always be on the “options board—something that should neither be jumped to at the outset nor forgotten as the accommodation process unfolds,” he explained. “It needs to be part of the calculus.”
Employers typically try to reasonably accommodate an employee within their current position first, said Myra Creighton, an attorney with Fisher Phillips in Atlanta.
Resorting to transfer only as a last-chance accommodation usually makes sense after trying other accommodations that allow the employee to perform the essential job functions without creating an undue burden on the employer, said Amy Epstein Gluck, an attorney with Pierson Ferdinand in Washington, D.C.
“Employers, however, sometimes forget to look at transfer when it’s an undue hardship to hold open the employee’s current position for the duration of an employee’s leave of absence, and jump to termination instead,” Creighton said.
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