We haveposted previously about the ADA’s “accommodation of last resort”: when an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider transferring the employee to a vacant lateral or lower position for which the employee is qualified.

Whether a position is “vacant” is usually not in dispute. But in Wardia v. Justice and Public Safety Cabinet Department of Juvenile Justice; Campbell County Regional Justice Department of Corrections (6th Cir. January 3, 2013),  that was an issue the Sixth Circuit grappled with.  

While the plaintiff, a “youth worker,” was recuperating from an injury, the employer assigned him temporarily to the control room position. This assignment lasted more than a year. The employer ended it when the employee’s health care provider indicated that the employee’s restrictions were permanent.

When the control room position is not filled by a recuperating employee, youth workers rotate through the position, which is a less stressful job, and “provides a break from dealing directly with juveniles, a break that potentially improves overall staff performance," according to the court.

The employee requested that the control room position be made his regular position as a reasonable accommodation. The Sixth Circuit affirmed the district court’s rejection of this claim.

"Employers cannot be required to convert either rotating or temporary positions into permanent positions," the court said. The permanent assignment of the control room position "would essentially require the creation of a new position rather than reassignment to an otherwise existing vacant one," the court noted. It would shift essential job functions to others who could not rotate off their regular assignment as often, “leaving them with [plaintiff’s] share of physical restraints and direct juvenile contact,” the court added.

The court also said that to require the employer to convert the temporary light duty position to a permanent position “would actually frustrate the purposes of the ADA–if employers are locked into extending temp positions for injured workers on a permanent basis they might well be less inclined to permit such an arrangement in the first place.”

We have posted previously that courts are willing to consider the impact on other employees of a plaintiff’s request for an accommodation. In this case also, the Sixth Circuit considered the fact that the plaintiff’s co-workers would not be rotating through the easier position, and would be picking up the plaintiff’s responsibilities in its “undue hardship” analysis.