By Deborah Hopkins, April 18, 2018
Elsewhere in this newsletter, I discussed some of the questions that come up about management-directed reassignment for business-related reasons. We also often get questions about reassignment as reasonable accommodation (RA) for disabilities, so let’s tackle that topic here.
Question: Is reassignment an entitlement?
Answer: Yes, if all other accommodation options have been exhausted. Reassignment is designated as a type of reasonable accommodation under the Americans with Disabilities Act. Under 29 CFR 1630.2, reassignment is a legal obligation if the agency cannot make minor job modifications or otherwise find an accommodation that will allow the employee with a disability to perform the essential functions of her position without causing an undue hardship on agency operations. Reassignment is referred to as the accommodation of last resort, a final opportunity for the individual to retain employment.
Question: What counts as reassignment for RA purposes?
Answer: Reassignment is a non-competitive, permanent transfer of the employee to a vacant, funded job at the same grade level in the agency. The individual must be qualified for that position, both in terms of “on paper” (education, work experience, etc.) and as a practical matter (able to perform the essential functions of the job with or without accommodation). 29 CFR 1630, Appendix. There is no obligation that the agency search for a higher-graded position for reassignment, see Foley v. Transportation, EEOC No. 0120090235 (February 6, 2009), or that the agency should create a position for the employee, see Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).
Question: Does the employee get to choose which position he prefers?
Answer: If there are multiple reassignment positions for which the employee is qualified, the agency should defer to the employee’s choice of position. We know that the agency gets to choose the accommodation, as long as it’s effective. See Birdie C. v. VA, EEOC No. 0120150115 (February 28, 2017). We know from the case law that if an employee identifies a vacant reassignment position, the agency is required to consider that, see Bowers v. DSS, EEOC No. 0720070012 (March 22, 2010). And when it comes down to two or more vacant positions to which the employee can be reassigned, I just don’t think an agency should want to pick a fight with the EEOC about which job the employee gets.
Question: What if there’s no position available at the employee’s grade?
Answer: The 29 CFR 1630 Appendix addresses this by stating the agency “may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”
Question: How many times does the agency have to look for a reassignment position?
Answer: Once is enough, if the search is thorough and reasonable. The key is that you have to be “reasonable.” One good-faith job search should be enough. If the agency has knowledge that a position will soon become vacant, though, the agency should reassign the individual once the job is open. 29 CFR 1614, Appendix. Also, if the employee is aware of a position to which she can be reassigned, and she is qualified, her proposal should be considered.
Question: What if the employee refuses to accept a reassignment?
Answer: If the employee refuses to accept a reassignment, and no other reassignments are available, the employee has ended the agency’s obligation in the RA process and may be removed for medical inability to perform or a similar non-disciplinary charge. See Clemens v. Army, EEOC No. 0320070044 (March 29, 2007).
Question: What if there are no reassignment positions available anywhere in the agency?
Answer: If no positions are available for which the employee is qualified, then the agency is free to remove the employee. See Acosta v. VA, EEOC No. 0320100028 (July 20, 2010).
Hope this answers some questions you may not have even known you had. Hopkins@FELTG.com