UNION REP TEST #16 (Right to be Reassigned)

If you have read our posts from the beginning, you know that there are a few situations where the employee has a right to be reassigned and one of them is where the reassignment is a necessary reasonable accommodation for an employee’s disability.  EEOC just issued a recent case which provides almost a textbook review of a disabled employee’s right to a reassignment, particularly where the agency considers it an undue hardship to provide the employee large amounts of telework in his current position or other accommodation. (See Shanti N. v. Xavier Becerra, Secretary, DHHS (Ind. Health Service) EEOC No. 2019004882 (2021).  We have extracted (and listed below) several statements from the decision which may or may not be true.  Read through the statements to see if you can spot which are true and which are false.  We include the answers after the questions.

QUESTIONS

1. The Code of Federal Regulations states that a reasonable accommodation for disabled employees includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, or reassignment to a vacant position.

2. In general, reassignment is the reasonable accommodation of last resort and should be considered only when: (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position; or (2) accommodating the employee in the current position would cause an undue hardship.

3. An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors. However, if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position.

4. Because the agency possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment.

5. A federal agency’s obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.

6. A determination of undue hardship should be based on several factors, including: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facility making the reasonable accommodation: the number of persons employed at this facility; the effect on expenses and resources of the facility; (3) the overall financial resources, size, number of employees, and type and location of facilities of the employer; (4) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; (5) the impact of the accommodation on the operation of the facility; and (6) the annual goals of the Senior Executive for whom the employee works. 

ANSWERS

1. True The right to be reassigned is formally listed in the Code 29 C.F.R. § 1630.2(o)(2)(ii).

2. True. Check out 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.”

3. True.  Note that if the agency had a position at the same pay amount, but chose to move the employee to a lower pay position, the employee and/or her union can file a grievance or EEO charge to seek back pay. Watch out for games where the agency gives the employee the lower graded position one week than suddenly opens a position at her old grade the next week.

4. True.  We were surprised too, but EEOC wrote, “An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time….” Later in the decision it stated, “However, the Commission has previously concluded that the obligation under the Rehabilitation Act to conduct a search for possible reassignment positions was not limited to vacancies within a particular subcomponent of the parent agency, department, facility, or geographical area.” Moreover, it noted that the agency is also obligated to explore with the employee her “qualifications and interests.” EEOC does not want the agency to think the employee’s right to a reassignment only applies to a vacancy in the same position she currently holds.

5. True.  EEOC clobbered the agency on this point. It noted that when it says the agency must look throughout the “agency” EEOC means it must look through the cabinet department (or larger entity) to which it belongs.  In this case, the employee was in the Ind. Health Service of the Health and Human Services Department and the agency was found to be wrong for not looking to move the employee to an open job in the Food and Drug Administration. WOW! EEOC threw aside agency allegations that it had not developed procedures for pursuing such inter-bureau reassignments or overcoming any preferences that might entitle others to the vacant job. As far as EEOC was concerned, unless the agency could prove the reassignment would cause an UNDUE HARDSHIP, it was obligated to make the reassignment.

6. False.  Number 6 has nothing to do with the decision as to whether there is an “undue hardship.”  The Agency is obligated to provide case-specific evidence related the specific employee’s request proving that providing reasonable accommodation would cause an undue hardship in the employee’s particular circumstances.

This case highlights the situation where an agency denies a disabled employee’s request for substantial telework and the likely liability it faces to search for a reassignment opportunity for the employee anywhere in the same cabinet department. Facing that alternative, we expect many a local agency executive to rethink her opposition to the telework demand.