The Americans with Disabilities Act (“ADA”) and Ohio law prohibit employers from discriminating against qualified individuals with disabilities. The laws are intended to allow individuals with disabilities an equal opportunity to pursue employment opportunities and to reduce the societal cost of dependency and non-productivity. Thus, the law requires employers to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause the employer undue hardship.
Most employers are familiar, at least on a general level, with their obligations under the ADA for persons meeting the legal definition of “disabled.” Federal law defines “disability” as (A) a physical or mental impairment that substantially limits one or more major life activities; (B) a record of such an impairment; or (C) being regarded as having such an impairment. An employee or applicant is a “qualified individual with a disability” if the individual can perform the essential functions of the employment position, with or without reasonable accommodation.
If an applicant or employee is a qualified individual with a disability, they must be treated just as any non-disabled applicant or employee, unless such treatment would cause “undue hardship” to the employer. “Undue hardship” means an action requiring significant difficulty or expense. There is a series of guidelines expanding on this definition, but the takeaway is that the hardship must be truly burdensome and not merely inconvenient.
Reasonable accommodations for qualified individuals with disabilities must be considered in the job application process, the work environment, and the benefits and privileges of employment. Modifications or adjustments to the work environment are those modifications that would enable a qualified individual with a disability to continue to perform the essential functions of their position. Examples include, but are not limited to, making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, job reassignment (within limits), and permitting leave exceeding normal company rules.
There are times when an employee sustains an illness or injury that renders them no longer able to perform the essential functions of their current job, even with an accommodation. At times, employers may conclude that their obligations to the employee may be over, but it is not that simple. The law requires an employer to analyze whether the employee may be entitled to the accommodation of reassignment to a vacant position if no reasonable accommodation will enable the employee to continue in their current position.
Government guidelines on the reassignment of disabled employees make several points clear. Reassignment should be considered only where there are no reasonable accommodations available to enable the employee to continue in their current position. If that is the case, the employer should first consider reassigning the individual to an equivalent position as to pay, status, and other terms of employment, if the individual is qualified, and if a position is vacant within a reasonable amount of time. An employer may only consider reassignment to a lesser position if there are no equivalent positions available. If that occurs, the employer may reduce pay to the pay level of the lesser position.
So long as it is consistent with the above requirements, the employer is free to choose the reassignment that is to be offered to the qualified individual. An employer is not required to create a new position to accommodate the employee, nor is an employer required to promote an employee to a higher position. If the disabled employee rejects the reassignment, the employer is under no obligation to continue offering other reassignments.
If a comparable position is vacant and the disabled employee is qualified, an employer’s refusal to reassign the employee, absent some other form of reasonable accommodation, constitutes a violation of the ADA.
Employers should keep reassignment in mind when there is no solution permitting the employee to stay in their current position. The employment lawyers at Critchfield can help walk employers through an analysis of the relevant considerations. It is always better for employees to consult with counsel prior to proceeding with terminating a disabled employee.