Reassigning an employee to a “vacant” position is a form of reasonable accommodation under the ADA. Determining whether a position is “vacant” is usually pretty easy, but not always, as illustrated by recent decisions by the Tenth and District of Columbia Circuit Courts of Appeals.

In Duvall v. Georgia Pacific, the plaintiff sought reassignment to a position occupied by temporary contract workers. Is a position filled by a temp “vacant”? The Tenth Circuit held that since the position filled by the temp was not available to a similarly situated, non-disabled employee, it was not “vacant” and was not available to the plaintiff.

Three weeks after Duvall, in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, the D.C. Circuit relied more on Webster’s Dictionary and, without articulating the Duvall analysis, ended up in pretty much the same place. The plaintiff sought reassignment as the receptionist, claiming the position was vacant because a temp was filling in for the regular receptionist, who was on medical leave. The Court concluded that the regular receptionist “held, filled or occupied” (words from Webster’s) the receptionist position, so that it was not “vacant.” The Court’s discussion suggested that it also recognized that the employer had not made the receptionist position available generally. The Court said that the employer had not sought a replacement for the regular receptionist, had not posted a job listing, and had not “otherwise acted as though it considered the position vacant.”

According to the EEOC’s Guidance, a position is “vacant” if it is available when the employee asks for reasonable accommodation or a position that the employer knows will become available within a reasonable period of time.

Other issues can complicate an employer’s responsibility to consider reassignment to a vacant position as a reasonable accommodation, such as: Must an employer train the employee to be reassigned, or provide a period of familiarization? How long after the request for reassignment does the obligation to identify vacancies end? And of course, the significant issue that the Supreme Court had agreed to hear, and then dismissed as moot when the parties settled their dispute: whether a disabled employee seeking a vacant position as an accommodation, and who meets the minimum qualifications of the position  is entitled to it, i.e., receives a mandatory preference, or must compete with others for the position.