Reassignment is 'last among equals' as an accommodation, 4th Cir. rules

Dive Brief:

Employers may not unilaterally reassign an employee with a disability to another position if another reasonable accommodation exists, the 4th U.S. Circuit Court of Appeals ruled (Wirtes v. City of Newport News, et al., No. 19-1780 (4th Cir. April 30, 2021)).
A police detective filed suit after a Virginia city concluded he could not perform the essential functions of his job and offered him an unwanted civilian position or the option of retirement.
The 4th Circuit vacated and remanded a lower court's decision that the detective's failure-to-accommodate claim flopped. Reassignment is "last among equals" as an accommodation, the court said; the lower court failed to analyze whether another accommodation was available.

Dive Insight:

While the Americans with Disabilities Act lists reassignment among its sanctioned reasonable accommodations, several circuit courts and the U.S. Equal Employment Opportunity Commission have dubbed reassignment an accommodation of "last resort."

EEOC has long held that employers should consider the accommodations that would allow an employee to stay in their current role before entertaining the possibility of reassignment, the 4th Circuit said. In a previous decision, the 4th Circuit ruled that employers should hold reassignment "in reserve for unusual circumstances."

Reassignment's status is a "win-win-win" for employers, employees with disabilities and their colleagues, the 4th Circuit said. It allows employers to retain discretion in hiring for the open position. It keeps employees in roles with which they have experience and familiarity. And it encourages confidence among workforces "that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have labored," the court said.

Reassignment may be a last resort, but it's still a viable option. Ford Motor Co. prevailed against a worker's claim that it violated the ADA by taking 10 months to reassign a worker with a disability. Ford had replaced a worker who took five months of medical leave and offered the worker another job five months later, prompting the worker to sue, claiming the company failed to accommodate his disability. A district granted summary judgment to Ford, however, and the 6th Circuit affirmed, ruling that the ADA does not require employers to create new positions for workers with disabilities.