The Law @ Work

Does an Employer have to Transfer a Disabled Employee to an Alternate Position as Accommodation?

by Marylou V. Fabbo

According to the First Circuit, which covers Massachusetts, an employer does not have to consider a transfer until the employee demonstrates that the position actually exists.   In Audette v. Town of Plymouth, there was no dispute that Michelle Audette, a police officer, was unable to fulfill the duties of an active patrol officer because of two injuries to her ankle. During the course of her recovery, she had varying limitations.  When her doctors permitted her to work, Audette received full-time pay for performing part-time work in a light duty capacity.  In May 2013, while Audette was out with her first ankle injury, another patrol officer returned to work after having been out with an injury.  He was not able to work as a patrol officer at that time so was assigned to full-time light duty work.  During one period of time he worked assisting with a backlog in the department’s National Incident-Based Reporting System (NIBRS), but when the department got caught up, he was transferred to a station officer position for the rest of his light-duty status.  In November 2013, that officer was returned to active-duty status as a patrol officer.

In June 2013, Audette underwent ankle surgery, and she was cleared to return to work in October, 2013.  However, she was unable to walk or stand, making it impossible for her to be a patrol officer.   Three days after the other officer had been transferred out of NIBRS, Audette requested to be reassigned to NIBRS in the data-entry position in which the other officer had been working.  There was no need to have anyone performing those duties,  however, as the department had gotten caught up on its backlog. Still, Audette was returned to work as a station officer.  Audette subsequently sued the Town of Plymouth alleging (among other things) that it had failed to accommodate her disability by not transferring her to the NIBRS position.

 A Transfer May Be a Reasonable Accommodation

The Americans with Disabilities Act (as well as Massachusetts state law) prohibits employers from discriminating against disabled employees who can perform their essential job functions with or without a reasonable accommodation.  Failing to provide a reasonable accommodation constitutes disability discrimination unless an employer can demonstrate that the accommodation would pose an undue hardship on the employer.  So if there’s no accommodation that would allow the employee to perform the essential functions of the position the employee holds, is it ok to part ways with the employee?  Not according to the Audette Court (or the many courts which also have stated the same).  When a disabled employee cannot perform the essential job functions of his or her position and requests a transfer to another position, an employer may have the duty to transfer the employee.  However, the employee must demonstrate that she can perform the essential functions of the position she is requesting.

An Employer is Not Required to Create a Position to Accommodate a Disabled Employee

Audette did not dispute that there was no accommodation that would allow her to be a patrol officer; however, she maintained that the ADA entitled her to a transfer to a position maintaining NIBRS data.  The Town disagreed, pointing out that no such position existed, and the work that the other officer on light duty had been doing had been completed.  The court stated that it is the employee’s burden to demonstrate that there was an actual position to which the employee could transfer.  The ADA does not require an employer to create a new job for an employee or to reinstate a job that no longer exists.  Despite a few attempts, Audette was unsuccessful in persuading the court that the position remained in existence.  As a result, the First Circuit upheld the District Court’s ruling, granting judgment for the Town. The case is Audette v. Town of Plymouth et al., No. 15-2457 (1st Cir. May 26, 2017)

How Far Does the Duty to Consider a Transfer Go?

In the Audette case, there actually was an opening in NIBRS at the time of her request—for a Records Sergeant.  Still, an employer is not required to transfer an employee to an alternate position for which an employee is unqualified or unable to perform with or without a reasonable accommodation.  Employers who want to stay out of hot water for not providing reasonable accommodations should look at each request for an accommodation on an individual basis.  What might work in one situation may not work in another.  While employers should consider transfer to an open position, an employer is not required to blindly transfer an employee who requests a transfer as a reasonable accommodation.

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