The Americans with Disabilities Act (“ADA”) generally requires employers to provide reasonable accommodation to disabled employees so that they can perform the essential duties of their jobs. This is not news. But what if no feasible accommodation can be identified in an employee’s existing position? Employers are often uncertain about whether they must offer reassignment to an alternative light duty position when there is no present need for the work but the same light duty was offered to others in the past. Last month’s federal appellate decision in Audette v. Town of Plymouth offers reassuring guidance.
Michelle Audette worked for the Town of Plymouth as a police patrol officer. Following an ankle injury in 2010, her doctors imposed significant limitations on her physical movement that prevented her from returning to active patrol duties. Despite her limitations, Audette continues to be employed as a patrol officer. The Police Department has regularly accommodated Audette by allowing her to work light-duty shifts as a station officer, a sedentary job in which she staffs the front desk at the police station. Whenever the doctor’s limitations preclude work as a station officer, Audette is granted paid injury leave.
In 2013, Audette had surgery. While on leave, she learned that another injured officer had been assigned to help catch up on a data reporting backlog for the National Incident-Based Reporting System (“NIBRS”). Audette made a written request that she be given the same assignment as a “reasonable accommodation.” Unbeknownst to Audette, however, the position had closed three days before, and the officer had transferred to station officer duties. The Department thus responded that the only light duty assignment available was as station officer. Audette resumed work as a station officer but later filed suit, alleging that the Town of Plymouth had failed to provide reasonable accommodation by denying her a transfer to a clerical position maintaining NIBRS data. The trial court granted summary judgment for the employer, and the First Circuit Court of Appeals affirmed.
The court explained that to be entitled to a transfer, an employee must show both that she can perform the essential functions of the desired position and that there is an actual vacancy. Audette offered evidence that the NIBRS assignment had been granted at least twice to other injured officers and that the Police Department at times fell considerably behind in logging data. But the appellate court rejected her contention that this created an obligation to grant Audette’s request for reassignment. In the court’s view, an occasional need was not proof of any vacancy that Audette could have filled at the time she made her request. An employer has no obligation to re-open a position that no longer exists.
The case is good news for employers worried about embarking on a slippery slope by offering special light duty assignments that have a limited lifespan. It serves as an important reminder, however, to be consistent and maintain solid documentation of when vacancies close and why. In Audette’s case, the court expressly noted that no other officer has been assigned to the NIBRS duties since 2013. Had the Police Department opened the assignment selectively to some officers but not others, the outcome may well have been different.