The 8th Circuit Court of Appeals recently addressed whether or not employers must consider job positions that may become open in the future as potential accommodations when evaluating a disabled employee’s request for a job transfer.  Citing guidance from the EEOC, the court said that – yes -- employers must consider transfers to “positions that the employer reasonably anticipates will become vacant in the fairly immediately future” as potential accommodations. The case is Faidley v. United Parcel Service of America, Inc. (8th Cir. 4/4/17).

Driver Positions to Open in “near future.” In Faidley, the employee worked as a delivery driver for UPS and his doctor restricted his work activity after he hurt his back.  He brought suit under the ADA after UPS failed to offer him another full time position. The employee introduced evidence which indicated that UPS expected that feeder driver positions (which he could perform given his restrictions) would become open in the near future (though the court does not identify what evidence the employee presented). 

Failure to engage in interactive process: Evidence of bad faith? The opinion also cautions employers that while there is no “per se” liability under the ADA for failure to engage in the interactive process, an employer’s failure to do so may be “prima facie evidence” that the employer acted in bad faith. 

Lessons for employers? Employers should be cautious about denying a request for a job transfer without first evaluating not only currently open positions but also whether or not there are jobs that may become open in the near future for which the disabled employee is qualified. Future job openings can arise in a myriad of ways, including, for example, when employees have advised that they may be leaving or are being transferred as part of a reorganization or in situations where certain job positions are frequently open because of high turnover. Employers also should heed the court’s caution that failure to engage in the interactive process may constitute evidence of bad faith. Employers are well-advised to follow an interactive process, even in situations where they may not believe that accommodation will be identified.