A federal appeals court has just reversed itself and upheld the EEOC position that an ADA provision relating to “reassignment” requires that employers appoint to a vacant position for which they are qualified those employees who are losing their current positions due to disability. The Court upheld such reassignments “provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”

This decision is notable because it completely reverses the same court’s prior decision on the same issue. The Court noted this reversal, and based its new decision on a Supreme Court decision which purportedly “undermined” its earlier decision.

The Court quoted with approval from another court decision a recitation of the two-part test established by the Supreme Court to balance, when it comes to reassignment, the competing interests of “accommodation” and  a disability-neutral rule of the employer which discourages “preferences.”

“It therefore appears that the [Supreme] Court has prescribed the following two-step approach for cases in which a requested accommodation in the form of a job reassignment is claimed to violate a disability-neutral rule of the employer. The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases.

The second step varies depending on the outcome of the first step. If the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. On the other hand, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.”

This is not the first court to hold this way, and employers must be aware of the "reassignment" provisions of the ADA and the test to determine whether such reassignment is required.  It is not simple, and counsel should likely be consulted in such a situation.