Must an employer bend its rule prohibiting an employee with discipline from transferring to another position as a reasonable accommodation if the request to transfer is due to a disability? 

We posted recently about a case where an employer denied an employee’s request to telecommute or relocate his office for a medical reason because he had a final warning for poor performance. The court there said “This explanation is troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rational for the ADA’s rule of reasonable accommodation on its head.” Goonan v. Federal Reserve Bank of New York, (S.D.N.Y. January 7, 2013).

In a more recent case, the plaintiff had a final warning for poor attendance and asked to transfer to the second shift for medical reasons. The employer denied the request. The court did not address whether the employer’s rule prohibiting an employee on final warning from transferring must yield to the ADA because the plaintiff failed to establish there was an opening on the second shift.  Also, the court noted that since the production requirements on both shifts were the same, this was really a request to work on a shift with less supervision, which is not a request for a reasonable accommodation. Beair v. Summit Polymers (E.D. Ky Aug 13, 2013).

So the question is well-defined–may an employer apply its consistently-enforced policy prohibiting an employee with discipline in his/her file from transferring where an employee requests a transfer for reasons related to a disability?  We know employers must use caution when dealing with a transfer request in these circumstances. But we must await an answer from a court as to whether the transfer limitation must yield to the ADA.