The Americans with Disabilities Act, as Amended (ADAAA), requires that an employee with a disability be provided necessary
reasonable accommodations in order to perform the essential functions of an
assigned position.
The ADAAA specifically lists reassignment to
a vacant position as a form of reasonable accommodation. This type of reasonable accommodation must be
provided to an employee who, because of a disability, can no longer perform the
essential functions of his/her current position, with or without reasonable
accommodation, unless the employer can show that it would be an undue hardship.
This information is intended to establish a
clear, orderly method for placing employees into an alternate position when
they are not able to perform the essential functions of a position and other
reasonable accommodations are not available.
Before reassigning an employee, agencies should
first consider accommodations that would enable the employee to remain in
his/her current position. Reassignment is the reasonable accommodation of last
resort and is required only after it has been determined that:
A.
There are no effective accommodations that will
enable the employee to perform the essential functions of his/her current
position, or
B.
All other reasonable accommodations would impose
an undue hardship on the employer.
However, if both the agency and the employee
agree that reassignment is more appropriate than accommodation in the present
job, then the agency may reassign the employee.
When an employee with a disability becomes
unable to perform the essential functions of his or her position even with
reasonable accommodation, the agency shall offer to reassign the individual to
an available funded vacant position. Reassignment as an accommodation must be
made unless the agency can demonstrate that the reassignment would impose an
undue hardship on the operation of its program. The individual should be able
to perform the essential functions of the position with reasonable
accommodation, if necessary.
The following criteria must be met when making a reassignment
as a reasonable accommodation:
A.
The individual has a disability that meets ADA
requirements.
B.
Other attempts at accommodation are documented
as not possible or not reasonable, or reassignment is identified as the most
reasonable alternative.
C.
There is a vacant clean position equivalent to
the one presently held in terms of pay and other job status, or a position will
be vacant within a reasonable amount of time.
1.
“Vacant"
means that the position is available when the employee asks for reasonable
accommodation, or that the agency knows the position will become available
within a reasonable amount of time. A position is considered vacant even if an
employer has posted a notice or announcement seeking applications for that
position.
2.
A
“clean” vacancy is a permanent vacancy that has been posted for transfer/recall
under an applicable collective bargaining agreement and all possible
transfers/recalls have occurred; or, when the recall process has been applied
as required in the DAS-HRE administrative rules.
3.
A "reasonable amount of time" should
be determined on a case-by-case basis, considering factors such as:
a.
The types of jobs for which the employee would
be qualified;
b.The frequency with which such jobs become available;
c.
Whether the employer, based on experience, can
anticipate that an appropriate position will become vacant within a short
period of time.
D.
The employee is "qualified" for the
new position. An employee is qualified for a position if s/he:
1.
Satisfies the requisite skill, experience,
education, and other job-related requirements of the position, and
2.
Can perform the essential functions of the new
position, with or without reasonable accommodation.
The employee does not need to be the best-qualified
individual for the position in order to obtain it as a reassignment.
E.
The
agency may reassign the employee 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 positions vacant or soon to be vacant for which the employee
is qualified (with or without an accommodation). In this situation, the
employee’s salary does not have to be maintained at the level of the higher
graded position.
There is no
requirement to create a position if no vacant positions exist. The agency may:
A.
Voluntarily
create a position in accordance with applicable merit rules and collective
bargaining agreement requirements on filling a position,
B.
Transfer,
demote, reassign, or promote the individual into a clean vacant position.
For
more information on Reasonable Accommodations, refer to:
·
Managers
and Supervisors Manual Section 4.66