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Employment Blog

Disabled Employee Must be Considered for Vacant Position

Authored by Dean R. Dietrich
Posted on June 5, 2013
Filed under Employment

Recent action by the United States Supreme Court has clarified the duty of accommodation that an employer must make under the Americans with Disabilities Act. The action of the U.S. Supreme Court was to deny review of a 7th Circuit Court of Appeals decision involving United Airlines. The 7th Circuit Court of Appeals decision held that a "reasonable accommodation" under the ADA would likely require an employer to provide an employee with a disability the "reassignment to a vacant position" as accommodation if the employee is unable to perform the duties of their regular position. This requirement would apply even if there were other qualified candidates for the position. By denying the appeal, the United States Supreme Court has allowed the 7th Circuit decision to stand. As a result, employers must consider and give a vacant position to an employee with a disability provided the employee can perform the essential functions of that vacant position with or without a reasonable accommodation.

This decision may not change the analysis done by a Wisconsin employer when considering whether or not to provide an accommodation to a disabled employee. The Wisconsin Supreme Court has been very generous in requiring employers to make many types of accommodations to an employee with a disability. One accommodation that likely must take place is to give a vacant position to the disabled employee without competing for the position if the employee is able to perform the essential functions of that vacant position. This would arguably not create an undue hardship for an employer.

Employers should be careful to consider what vacant positions exist if an employee is considered disabled and unable to perform the essential functions of their then current position. Employers must do a thorough analysis to determine if the disabled employee is able to perform the duties of the vacant position. An employer may be subject to a disability claim if that vacant position is not granted to the disabled employee unless legitimate reasons exist for not making that assignment; a legitimate reason would not be a more qualified candidate is available to fill the vacant position.