Is reassignment a “reasonable accommodation” and why is it called the last resort?Posted by on

An unfortunate aspect of the human condition is that we get sick. Sometimes, over time, those illnesses or injuries can become physical or mental impairments that substantially limit an individual’s ability to do things he or she used to be able to do. If you are a federal employee and you develop a herniated disk, post-traumatic stress disorder, multiple sclerosis, or another chronic medical condition, the law requires your agency to provide you with a reasonable accommodation, unless doing so would create an undue burden on the agency. 29 U.S.C. § 791. Once you inform the agency of your disability, it must collaborate with you to determine the essential functions of your job and your limitations in performing those duties. Examples of reasonable accommodations include, but are in no way limited to, ergonomic desk chairs, speech recognition software, situational telework, and handicap accessible hotel rooms during work travel.

An employee may request a particular accommodation, but the agency is not required to provide that specific accommodation, as long as the accommodation it does provide is effective. Similarly, an employee may not reject an accommodation that is reasonable. Federal employees can file an EEO complaint claiming a failure of accommodation. It is worth remembering that the EEOC cares only whether the employee was offered a reasonable accommodation: if not, the Agency may be liable. If the Agency did offer reasonable accommodation and the employee declined it, however, the employee is likely to lose.

The goal of reasonable accommodation is to enable the employee to perform his or her essential duties. If there is no accommodation that will achieve this goal, the Agency is required to consider reassignment. Reassignment is referred to as the accommodation of last resort because an agency is only required to offer it after considering all other possible accommodations and determining that none would be effective. Because the agency is in the best position to know which jobs are vacant, it is obligated to inform the employee about vacancies for which he or she may be eligible for reassignment. Additionally, the employee must be qualified, in other words, have the qualifications and experience to perform the duties of the reassigned position with or without accommodation.

Questions about reassignment, those offered and those not offered, pose particular legal problems for employees and agencies alike. A review of EEOC decisions from the past couple years discloses what the Commission considers important in cases involving reassignment. Federal sector employees and their attorneys should keep these factual scenarios in mind when defining claims and conducting discovery.

Because reassignment is the accommodation of last resort, the Agency must first consider if any other accommodation would allow the employee to perform his or her current job. In Hertha W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162648, 2018 WL 1181115 (Feb. 22, 2018), the Agency eventually reassigned the complainant, a medical technician with severe hearing loss in both ears, to a position which did not require her to assist in surgeries. Before the Agency reassigned her, however, it tested an assistive listening device (ALD) in the surgical lab, and determined that the complainant missed about half of the instructions she was given through the ALD. The complainant was displeased with the ultimate transfer to a lower grade position, but the EEOC held that, because the tests showed the ALD was not an effective accommodation, the agency properly considered reassignment as a reasonable accommodation of last resort.

When an agency reassigns an employee, it must make sure the reassignment is to a position which the employee is qualified to perform with or without accommodation. The reassignment may be to a position with lower pay, but only if there are no equivalent vacant funded positions to which the employee could have been reassigned. In Victor S. v. USPS, EEOC Appeal No. 0120160739 (Oct. 18, 2017), the agency reassigned a full-time mail processing clerk with degenerative joint disease to a city carrier position after his facility closed. When he submitted medical documentation regarding his limits on lifting and walking, the agency instead offered him a part-time sales position at a location 48 miles away. Since the offered part-time position was not equivalent to the complainant’s clerk position — in pay or status — and because the record showed that there was at least one clerk position at a closer facility to which the agency could have reassigned the complainant, the EEOC held that the agency did not satisfy the its Rehabilitation Act obligations.

Finally, while reassignment is a reasonable accommodation, “in most circumstances,” a change of supervisor is not. See Mitchell v. Labor, Appeal No. 01201005552012, slip op. at *5 (February 9, 2012). The EEOC rarely approves a change in supervisor as an accommodation. In Davina W. v. Dep’t of Treasury, EEOC Appeal No. 0120160978 (June 29, 2018), the complainant suffered from anxiety that was exacerbated by her interactions with her supervisor. She informed the agency of her condition and asked to be reassigned. The EEOC determined that her request for reassignment was essentially a request to change her supervisor, and that agencies are not required to provide a different supervisor as a type of accommodation. According to the EEOC, because the agency was not obligated to provide the complainant with a reassignment away from her supervisor, the agency did not err in denying her requests for reassignment.

If you believe you are entitled to accommodation of a disability that may require reassignment, you should seek legal from a law firm such as Kalijarvi, Chuzi, Newman & Fitch, P.C.

This blog post is an adaptation of a paper prepared for the upcoming Changing Currents in Employment Law CLE offered by the District of Columbia Bar Association. To register to attend the presentation (in person or via webinar) and to learn more about recent developments in federal sector employment law, please visit dcbar.org.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at kcnfdc.com/contact.