“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 22nd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not taking into account the interplay of the federal FMLA and “state FMLA” laws.

This post takes on a bit of a different twist by expanding beyond the federal FMLA. A common mistake employers can make in FMLA leave management is not taking into account “state FMLA” leave laws that might provide different or additional rights than the federal FMLA.

Employers can unintentionally overlook state FMLA leave laws, particularly if an employer has remote workers or small numbers of employees across multiple “state FMLA” jurisdictions.

The nature of these laws vary, some adding additional family members to the definition of a covered family member, some setting lower employee thresholds for leave eligibility, some providing for only additional family leave rights, and some mirroring the federal FMLA more closely but providing leave over a longer period of time.

Currently, the following states have “state FMLA” leave laws:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • New Jersey
  • Oregon
  • Rhode Island
  • Vermont
  • Wisconsin

Additionally, the Miami-Dade County Family Leave Law in Florida requires the same leave as Federal FMLA for Miami-Dade County employees, with the addition of leave to care for a grandparent with a serious health condition on the same terms and conditions as leave under the FMLA to care for a parent with a serious health condition.

In jurisdictions with state FMLA leave laws, employers should consider comparing the state law with the federal FMLA to determine any additional rights to which employees may be entitled. These laws also typically have their own notice requirements.  In some states, a state-specific policy may be appropriate, or required. Overlooking these details could result in liability under state law.

 

Westchester County has released a model Notice of Employee Rights for the Westchester County Earned Sick Leave Law (“WCESLL”), effective April 10, 2019.

According to FAQ’s released simultaneously, starting on April 10, 2019, employers must begin providing eligible new hires with a copy of the law and written notice, which is intended to explain how the law applies to them.  Employers have until July 10, 2019 to provide copy of the law and written notice to eligible current employees.

The Notice confirms that any employee who works 80 hours or more in a calendar year in Westchester County is eligible to accrue sick leave under the WCESLL.  Starting on July 10, 2019, all eligible employees who work for companies with five or more employees are entitled to start accruing one (1) hour of paid  sick leave for every thirty (30) hours worked up to 40 hours of sick leave in a year.  Eligible employees who work for companies with less than five employees are entitled to accrue up to 40 hours of unpaid sick leave in a year.  Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness.

The WCESLL also requires that employers post a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location.  The County has not released a model posting to date.

For more information about WCESLL, please see our blog What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave.

Please contact Arin Liebman, Susan Corcoran or the Jackson Lewis attorney with whom your regularly work with any questions related to the Westchester County Earned Sick Leave Law.

The Fourth Circuit has reaffirmed its position that regular and reliable attendance is an essential function of most jobs.  The Court held that an employer did not violate the Rehabilitation Act by taking adverse action against an employee because of her attendance issues—even though they were caused by her mental illness.  Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019).

While the disability discrimination claims in Coats arose under the Rehabilitation Act, the same analysis would apply under the Americans with Disabilities Act.  The Fourth Circuit’s thorough opinion offers helpful guidance for employers attempting to balance their need for reliable attendance with their obligations under federal discrimination laws.

Background

Hannah was hired by the Office of the Director of National Intelligence (“DNI”) for a five-year term in March 2011.  Shortly after being hired, she was diagnosed with depression.  Hannah immediately informed her supervisors of her diagnosis, but did not request an accommodation at that time.  By March 2015, Hannah’s co-workers and supervisors observed that her attendance was becoming erratic—including days where Hannah would come to work extremely late or would be unreachable for hours.

On March 19, 2015, Hannah’s supervisors met with her to directly address her attendance issues.  Together with Hannah, they developed a plan that required Hannah to arrive at work by 10 AM and to provide advance notice if she was going to be absent or late.  Despite the plan, Hannah continued to arrive late or miss work without advance notice.  On April 9, 2015, Hannah’s supervisors informed her that the plan was not working, and they referred her to the Employee Assistance Program (“EAP”).  Despite Hannah’s participation in EAP, her attendance problems persisted. Hannah requested four weeks of medical leave based on the recommendation of her psychiatrist.  Hannah’s leave request, after being withdrawn and renewed, was ultimately approved after a two-week delay.

Before taking her medical leave, Hannah applied for several permanent positions with DNI.  An interview panel recommended her for one position.  However, she was not selected after DNI’s Chief Management Officer recommended that she not be selected because her performance was “not consistent with a potentially good employee.”  All of Hannah’s applications for a permanent position were rejected, and Hannah’s employment ended in March 2016 at the end of her five-year term.

Among other claims, Hannah asserted that DNI violated the Rehabilitation Act by (1) failing to accommodate her depression; (2) requiring her to undergo a medical examination; and (3) refusing to hire her for a permanent position.

Fourth Circuit Decision

The Fourth Circuit affirmed summary judgment for the employer on Hannah’s Rehabilitation Act claims.  However, Chief Judge Gregory wrote a separate opinion in which he dissented as to Hannah’s Rehabilitation Act claims.

The Court held that DNI provided Hannah with a reasonable accommodation by working with her to develop an attendance plan.  When Hannah’s attendance issues continued, Hannah’s supervisors attempted a new accommodation—referring Hannah to EAP.  Hannah argued that DNI failed to accommodate her by improperly rescinding the attendance plan accommodation and unilaterally sending her to EAP counseling.  The Court rejected this argument, explaining that the employer “has the ultimate discretion to choose between effective accommodations” and noting that Hannah’s supervisors only acted unilaterally when the attendance plan accommodation did not work.  The Court also rejected Hannah’s argument that her request for medical leave was improperly delayed.  The Court explained that the delay was less than a month, and Hannah’s supervisors were actively considering her request during that time.

The Fourth Circuit also rejected Hannah’s claim that the EAP counseling to which she was referred constituted a prohibited medical examination.  As a threshold matter, the Court noted that EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination that would violate the Rehabilitation Act.  Even if EAP was a mandatory medical examination under the facts of this case, the Fourth Circuit held the referral to EAP was not unlawful because it was “job-related and consistent with business necessity.”

Finally, the Fourth Circuit held that DNI did not violate the Rehabilitation Act by failing to select Hannah for a permanent position because of her attendance issues.  The Court explained: “Hannah might have been exceptionally talented and substantively good at her job, but . . . in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis.”  The Court rejected Hannah’s argument that because her disability was the cause of her attendance issues, her employer could not deny her a job opportunity on that basis: “We have no doubt that Hannah’s struggle with depression was the cause of her attendance issues, and we are sympathetic to the toll this condition took on a highly talented employee.  However, [DNI] was nevertheless permitted to take Hannah’s attendance issues into account in its decision whether to hire her” for a permanent position.

Takeaway

Hannah reiterates the Fourth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  However, the lengths to which an employer must go to provide an accommodation to an employee with disability-related attendance problems remains a fact-intensive inquiry.

In the global economy, it is not unusual for U.S. multinational companies to have employees working overseas.  Overseas employment arrangements require employers to navigate a variety of complex legal issues – some of them leave related. For example, what happens if an overseas employee has a medical condition that causes them to miss work?

The Family and Medical Leave Act and Americans with Disabilities Act treat employees working in a foreign country differently.

Section 29 CFR 825.105(b) of the FMLA regulations states that “the FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any Territory or possession of the United States.” Territories or possessions of the United States include Puerto Rico, the Virgin Islands, the Outer Continental Shelf lands, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll and Johnston Island. Employees who are employed outside these areas are not covered by the FMLA and, accordingly, not counted for purposes of determining employer coverage or employee eligibility.

The ADA, however, may apply to overseas employees.  To be covered under the ADA, an employer must employ 15 employees.  The ADA applies to U.S. employees employed by covered employers in foreign countries, provided the employee is: 1) a U.S. citizen and 2) employed by a U.S. company or a foreign company controlled by an employer of American nationality.

It should be noted that the ADA does not require U.S. employers to violate the laws of a foreign country where the workplace is located in order to comply with the ADA.

Global employers should remember that some U.S. legal protections travel with employees who work overseas.  Given the complexity of these issues, employers should consider engaging legal counsel when dealing with leave issues involving employees who work outside of the U.S.

Companies should begin preparing now for the new Westchester County Earned Sick Leave Law (“WCESLL”), which becomes effective on April 10, 2019. Here are five steps to get employers started.

1. Determine Whether Your Company Must Provide Employees More Paid Time Or Expand The Reasons Employees Can Use Paid Time Benefits.

Employers should confirm they provide eligible employees with the minimum amount of leave they are entitled to under the WCESLL. At the start of employment, or on July 9, 2019, whichever is later, all eligible employees, except domestic workers, are entitled to accrue a minimum of one hour of sick leave for every 30 hours worked, up to 40 hours per year. Rather than calculate the accrual of earned sick leave, employers can provide eligible employees with a combined 40 hours or more of sick leave and other paid time off (“PTO”) benefits per year. Eligible employees who work for companies with five or more employees are entitled to paid sick leave and eligible employees who work for companies with less than five employees are entitled to unpaid sick leave. Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness. Unionized employers must review their collective bargaining agreements and the specific WCESLL rules that apply to collective bargaining agreements.

2. Develop A Process To Track Employees Who Only Work In Westchester On An Occasional Basis.

Companies may have to comply with the WCESLL even if their employees are not “based” in Westchester. Absent clarifying regulations or guidance, it appears any employee who works 80 hours or more in a calendar year in Westchester County is eligible for sick leave. Thus, employees who only work in Westchester on an occasional basis (e.g., sales calls or covering shifts) may become eligible for sick leave as soon as they reach the 80-hour threshold. Tracking such time will be a considerable challenge for many if not most employers.

3. Update Your Sick Leave And Paid Time Policies And Procedures.

Employers should update their sick leave and paid time policies to ensure they satisfy the minimum standards under the WCESLL. For example, employers must allow employees to carry over up to 40 hours of unused accrued sick leave into the next year. Additionally, an employer can only delay an employee’s ability to use earned sick leave until they have worked for the employer for 90 days. Employers also may have to modify the process employees follow or documentation employees submit to support sick leave requests. Employers with NYC operations should keep in mind that the WCESLL is not identical to New York City’s Earned Sick and Safe Time Law; for example, the reasons for leave under the WCESLL are not as expansive as NYC law.

4. Prepare For The Notice And Posting Requirements.

On the start of employment or by July 9, 2019, whichever is later, employers must give employees a copy of the WCESLL and written notice of how the law applies to them. Employers must also display a copy of the WCESLL and a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location. A carefully drafted written policy describing how employees can request to use sick leave is recommended and will go a long way to ensure employees understand their rights and obligations under this law.

5. Coordinate WCESLL Benefits With FMLA, NYPFL And Voluntary Leave Benefits.

In some instances, time covered under the WCESLL will overlap with leave provided under the federal Family and Medical Leave Act (FMLA), the New York Paid Family Leave Act (NYPFL), and/or voluntary paid or unpaid leave benefits. Employers should confirm that they are coordinating these leaves properly to ensure time covered under the WCESLL is not being counted improperly during such leaves while, conversely, avoiding any unnecessary “stacking” of such leaves.

Please contact Arin Liebman, Susan Corcoran, Frank Alvarez or the Jackson Lewis attorney with whom your regularly work to discuss ways your organization can prepare for the Westchester County Earned Sick Leave Law given your company’s unique operational needs.

In major news for employers in Pittsburgh, the City Council just unanimously passed a new ordinance greatly expanding protections for pregnant employees and imposing several new requirements on private employers, much like those under the federal Pregnancy Discrimination Act, Americans with Disabilities Act, and related EEOC guidance.

The ordinance also makes Pittsburgh one of the first cities nationwide to offer protections for partners of pregnant women—which is defined broadly to mean a person of any gender with whom a pregnant woman has a relationship of mutual emotional and/or physical support (and does not require a marital or domestic relationship). Committee members called the legislation “trailblazing” and “leading the way nationwide.”

Section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, the City Fair Practices Provisions, already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth, or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all of the law’s antidiscrimination provisions apply to partners of pregnant workers, as well.

Under the new ordinance, Pittsburgh employers can be liable for discrimination if they fail to reasonably accommodate their pregnant employees, unless they can prove that doing so would cause undue hardship. Examples of reasonable accommodations listed by the ordinance include, among other things, schedule modifications, granting leave requests, modified duties and job requirements, and modified work stations.

The ordinance requires employers to initiate an interactive process with pregnant employees who are having an issue with their work performance or conduct at work related to their or a partner’s pregnancy, childbirth, or related medical condition —regardless of whether the employee has asked for an accommodation. In addition, it limits when employers may request medical documentation from pregnant workers and forbids retaliation against employees who request reasonable accommodations under the new law.

The Pittsburgh Commission on Human Relations is the City agency tasked with investigating complaints under this ordinance.

We will provide updates as additional information and guidance becomes available.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 21st blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Dictating the documentation an employee provides to establish a family relationship.

It is common knowledge that employees can take FMLA leave due to a serious health condition of an immediate family member, which is defined under the law as a spouse, parent, and son or daughter.

The FMLA regulations also permit an employer to request documentation confirming the relationship, within certain parameters.

An employer may choose to require an employee to provide reasonable documentation of the covered family relationship when an employee seeks leave for the care of a family member with a serious health condition.  This documentation may take the form of a simple statement from the employee, a child’s birth certificate, a court document, etc. The employer is entitled to examine the documentation, and the employee is entitled to the return of the official document submitted for this purpose. 29 CFR § 825.122(k).

According to the U.S. Department of Labor, it is the employee’s choice whether to provide a simple statement or other documentation. Therefore, an employer should not dictate the specific type of documentation it wants to review. Further, employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise FMLA rights. Therefore, such a request should be reasonable based on the particular situation.

This is a discrete issue under the FMLA, and case law on this particular regulation is virtually nonexistent. However, employers should be aware of their ability to confirm covered family relationships, and how to properly do so, in accordance with the FMLA regulations.

The District Court for the Eastern District of Louisiana dismissed an employee’s disability discrimination claims based on a broad release in her workers’ compensation settlement agreement with the employer. Peddy v. Aaron’s, Inc. Case No. 02:18-cv-1625 (E.D. La. Feb. 21, 2019). The Court also ruled in favor of the employer on its counterclaim for breach of the settlement agreement, and determined the employer was entitled to its attorneys’ fees and costs to defend the lawsuit.

The employee sustained a workplace injury in 2009, and filed a workers’ compensation claim. The employer accommodated the employee’s resulting medical restrictions for several years following the accident. However, according to the employee, the employer stopped accommodating and terminated her employment in 2016. The employee subsequently filed suit alleging failure to accommodate, disability harassment, disability discrimination and intentional infliction of emotional distress. Her workers’ compensation claim was still pending at the time she filed her disability discrimination lawsuit.

The employee settled her workers’ compensation claim after she filed the disability discrimination lawsuit, but before serving it on the employer. The settlement agreement released the employer from “all liability of any nature whatsoever, whether past, present or future, . . . including all claims arising under . . . the laws of Louisiana . . . the laws of the United States . . . [or] the Louisiana tort law, as a result of the [2009 workplace injury].” The settlement agreement also prohibited the employee from filing any claims against the employer “arising from” the 2009 workplace injury.

The defendant asserted counterclaims against the employee for breach of contract and indemnification under the agreement. After the parties filed their respective answers, the employer moved for judgment on the pleadings. The Court held that the dispute was ripe for judgment on the pleadings since it involved contractual interpretation.

The Court first determined that the employee released her disability discrimination and tort claims when she signed the workers’ compensation settlement agreement. The Court reasoned, “[the employee’s] disability and tort claims plainly arise ‘as a result’ of [workers’ compensation injury], because she frames her injuries as a ‘but-for’ cause of her claims.” The employee specifically claimed that the accident caused permanent disabilities, “and that [the employer] created a hostile work environment and discriminated against her because of her disabilities.”

The Court also found that the employee breached the terms of the settlement agreement by maintaining the lawsuit after she signed the settlement agreement. Thus, the employer was entitled to its attorneys’ fees and costs in defending the action. The employer was not, however, entitled to judgment on its indemnification claim, based on the language of that provision.

This decision reinforces the importance of considering other potential claims, and particularly disability discrimination claims, when resolving a workers’ compensation dispute. A general release is not appropriate in every situation. However, in workers’ compensation cases involving former employees or employees who cannot return to work (with or without reasonable accommodations), including a general release of employment and tort claims prevents an employee from pursuing disability discrimination claims on the heels of receiving a workers’ compensation settlement. Employers should consult with counsel about including a general release of claims in a workers’ compensation agreement to ensure the release is appropriate under the circumstances and supported by adequate consideration.

If you’re like most folks, you’ve been wondering “when am I going to see a story mentioning both flesh eating bacteria and reasonable accommodation.” Wonder no more.
Gary Brunckhorst worked for the City of Oak Park Heights Minnesota for more than fifteen years. In April 2014, he was serving as the Senior Accountant/Payroll Technician (Senior Accountant), a position that paid $72,000 per year and required him to perform payroll and information technology (IT) functions. Because the City is a small organization with approximately twenty-one employees, Brunckhorst also performed back-up duties for accounts payable and utility billing, assisted the front office in answering phones, and covered for other employees during their lunch breaks. Although Brunckhorst performed his job at City Hall, he was able to perform certain IT functions from a computer at his home.

In April 2014, Brunckhorst contracted Fournier’s gangrenous necrotizing fasciitis—a rare, life-threatening disease commonly known as “flesh-eating” bacteria. Brunckhorst requested and was approved for leave under the FMLA that expired on July 15, 2014. He was then offered and accepted a series of additional unpaid leaves pursuant to a City ordinance. By January, however, the City had decided it did not need a Senior Accountant. Rather than eliminating the position and offering a severance package, the City assigned Brunckhorst to the position of Utility Billing Clerk/Accounting Technician so that he would have a job when he returned, albeit at a lower salary of $50,000. The new position included the same benefits and was classified for union representation.

Brunckhorst was not happy and insisted that he be returned to his original position. Brunckhorst still had not returned to work by February 25, 2015 and the City sent him a letter asking him to request any reasonable accommodations he might need to perform the essential functions of the new position by March 23, 2015 and confirm that he could assume the position by April 23 or his employment with the City would be terminated.

Brunckhorst refused and insisted on being returned to his original position and be allowed to work from home for the first 120 days. He submitted a Work Ability Report from his physician that restricted him to four-hour work days with some physical limitations beginning March 18 and ending on May 18. The physician did not limit Brunckhorst to working from home.

The City informed Brunckhorst that he could not return to his original position, nor could he work from home because he could not perform the essential functions of the new position from a remote location. The City instead offered to allow Brunckhorst to work at City Hall four hours per day from April 20 to May 18. Brunckhorst refused. The City fired him and he sued.

In his lawsuit, Brunckhorst claimed that the City violated the ADA and the state analog because, among other things, it failed to offer him a reasonable accommodation and failed to engage in an interactive dialogue. The District Court for the District of Minnesota—Minneapolis, granted the City’s Motion for Summary Judgement. On appeal, the Court of Appeals for the 8th Circuit affirmed.

The Court of Appeals found that because Bronckhurst did not return to work prior to the expiration of his FMLA leave he was not entitled to be restored to the Senior Accountant position. In doing so, the court rejected the Enforcement Guidance from the EEOC stating that the ADA requires that an employer hold open the original position of an employee that has been granted leave unless the employer can demonstrate that holding open the position would impose an undue hardship. The Court held that the EEOC document was not binding authority.

The Court also held that Brunckhorst’s request that he be allowed to work from home was not a reasonable accommodation in light of his testimony that he could work at City Hall but that it “would have been easier” to work from home and the form filled out by his physician did not state that he must work from home. Instead, the City’s proposed accommodation was consistent with the doctor’s decision that Brunckhorst be allowed to work four hours per day up to May 18, 2015.

The Court of Appeals also held that Brunckhorst failed to show that he could have performed the essential functions of his job remotely. He testified that others at work would have needed to perform some of his duties. Careful readers of this Blog know that an employer is not obligated to hire additional employees or reassign existing workers to assist an employee to perform his essential duties.

Finally, the court found that no reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempted to narrow the window of the interactive process to the last few days prior to his termination but the record showed that for months regarding his return to work, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions.

In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits.

Before discussing where courts are divided, let’s start with the consensus.  First, the Americans with Disabilities Act (“ADA”) clearly requires employers to make reasonable accommodations to the limitations of an employee with a disability unless an employer can show that the accommodation would impose an undue hardship.  The statutory text of the ADA states that the term “reasonable accommodation” may include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).  Thus, if during the interactive process an employer is unable to identify a reasonable accommodation that will enable an employee with a disability to continue performing the essential functions of his or her current job, an employer may need to consider reassigning the employee to a vacant position—often referred to as the accommodation “of last resort.”  It is here, when we get to the meaning of “reassignment,” where courts diverge.

Does reassignment mean that the employee seeking accommodation gets the vacant position if he or she is qualified for it?  Or, does the ADA only require that the employee be allowed to compete equally with other applicants for the position?  Or, is the answer somewhere in the middle?

The Supreme Court has held that, in the run of cases, an employee with a disability seeking an accommodation is not entitled to a vacant position over a worker with superior rights to bid for the job under an employer’s seniority system.  US Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002).  The Supreme Court, however, has not addressed the rights of an employee with a disability seeking a reassignment outside this seniority system context.

A recurring, critical question is whether an employee with a disability seeking an accommodation is entitled to a vacant position over someone more qualified for the job, particularly when an employer has a practice or policy, like most employers do, of hiring the most qualified person for the job.  According to the Equal Employment Opportunity Commission (“EEOC”), reassignment means the employee with the disability seeking reassignment gets the vacant position if qualified for it even if another individual is more qualified.  EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002).

Circuit Courts of Appeals are split on this issue.  Compare Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (“[T]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir. 2016) (“Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’”), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”), Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc) (“[R]equiring the reassigned employee to be the best qualified employee for the vacant job is judicial gloss unwarranted by the statutory language or its legislative history.”), and Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (explaining that the word “reassign” in the ADA’s statutory text “must mean more than allowing an employee to apply for a job on the same basis as anyone else.”).

In Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018), the Tenth Circuit recently reiterated its position that “in most situations, an employer must award the [vacant] position to the disabled, but qualified, employee.”  The Tenth Circuit, however, explained that an employer’s policy of hiring the most qualified applicant for vacant positions is relevant and an “employer could point to its policy and argue that while the employee was technically qualified for a given position, the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.”

The Fourth Circuit Court of Appeals, like several other Circuit Courts, has never squarely addressed this issue, but it could soon because of an appeal pending in Elledge v. Lowe’s Home Ctrs., LLC, No. 5:16-cv-00227-RJC-DCK (W.D.N.C. Dec. 20, 2018).  Elledge sought reassignment to multiple positions after his knee condition left him unable to perform the essential functions of his current job, which required frequent traveling, walking, and standing.  Lowe’s, like many employers, had a hiring policy requiring that jobs be posted and that individuals apply and compete for vacant jobs.  While Elledge applied for multiple vacant jobs, the evidence showed that Elledge did not obtain these positions because other applicants were more qualified.

Elledge brought suit alleging that Lowe’s violated the ADA by failing to reassign him to the vacant positions sought.  The district court dismissed Elledge’s claims on summary judgment.  The district court explained that Elledge “should not have enjoyed a privileged status in the job application process . . . . He was required to adhere to Lowe’s standard policy and compete on equal footing with other employees and outside applicants.” Elledge recently appealed the decision, and a ruling from the Fourth Circuit should come later this year.

Given the Circuit split on the extent of an employer’s obligation to reassign an employee with a disability to a vacant position as a reasonable accommodation, the Supreme Court may soon resolve this issue should the appropriate case come before it.  Until then, employers should stay up to date on the evolving law in the jurisdictions where they operate and consult with legal counsel when considering reassignment as an accommodation.