REASSIGNMENTS RIGHTS FOR DISABLED EMPLOYEES
Disabled employees just got a little more clout to insist on reassignment to jobs they can do.
In 2002, the Supreme Court stepped up to the question of whether disabled employees in need of a reasonable accommodation have the right to insist that they be reassigned to other positions. The court said that they did so long as they did not displace an employee who had seniority or other collectively bargained rights to the job. (See United Airways Inc. v Barnett) Despite the Court’s decision, some employers have been slow to come into full compliance.
In the most recent case United Airlines had a policy of allowing disabled employees to apply for reassignments, but required that they compete against other applicants for the job. The disabled applicant would be selected if the best applicant or if among two or more employees who the employer judged to be equally qualified. The EEOC said that even a system that gave the disabled priority did not conform with the Supreme Court’s 2002 ruling and sued. When the case got to the 7th Circuit Court of Appeals, it pronounced that it was reversing any prior decisions that failed to fully enforce the Supreme Court’s rule. More precisely it said,
We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. ( See EEOC v. United Airlines Inc.)
This decision provides two lessons for those of us in the federal sector. First, when negotiating a contract that addresses how positions are filled unions should spell out the order in which the employer will consider various sources, e.g., CTAP, priority consideration, competitive applicants from within the unit, competitive applicants from outside the unit, military-related hardships reassignment requests, seniority reassignment requests, disability related hardships, workers comp or RIF redeployment, etc. If parties leave the “order of source consideration” unaddressed, the disabled employee can insist that he or she be considered before anyone else. That is neither good nor bad for a bargaining unit, but a decision the union should consider before reaching agreement.
Second, if the union is representing an employee requesting a reasonable accommodation reassignment to another position and it is one the employer wishes to fill, the union can use these precedents to insist on reassignment so long as the employee is qualified and the move would not create an undue hardship. For example, if an employee working the night shift suffers from night vision problems, he or she would likely have a right under the disability protection laws to insist on being reassigned to a position on the day shift. (As we have said so often, FEDSMILL.com is not providing legal advice and when involved in a specific representational case the union should seek legal counsel if it has questions.)