By: Jonathan R. Mook
If a disabled employee cannot be reasonably accommodated in his or her current job, the Americans with Disabilities Act (“ADA”) requires an employer to consider reassigning the employee to a vacant position that the employee is qualified to perform. Importantly, however, reassignment is not a preferred accommodation under the statute. As the Fourth Circuit Court of Appeals recently emphasized in Wirtes v. City of Newport News, C.A. No. 19-780, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship.”
Michael Steven Wirtes served as a police officer with the City of Newport News when he developed permanent nerve damage due to wearing a heavy, full duty belt which supported pepper spray, a gun with ammunition, a taser, a baton, handcuffs, a flashlight, a radio, and body camera battery pack. Wirtes asked the City for reassignment to a unit that would allow him to continue serving as a police officer without the need to wear a full duty belt. For a time, the City obliged.
That changed, however, when the City amended its job description for police officers to require all police officers to wear a standard issued full duty belt with all applicable gear. When Wirtes confirmed that he could not wear the standard full duty belt, the City offered him a choice between accepting a civilian job as a logistics manager or choosing to retire. Although Wirtes initially chose the civilian job, but soon thereafter, he retired, claiming he was “forced under medical reasons.”
Wirtes’ ADA Suit
Subsequently, Wirtes filed suit against the City in the Newport News Division of the Eastern District of Virginia, claiming that the City had violated the ADA by failing to accommodate his disability. The district court, however, dismissed Wirtes’ suit, reasoning that the City had fulfilled its ADA obligations by offering him the logistics job.
Wirtes appealed the dismissal of his case to the Fourth Circuit, which reversed the lower court and reinstated his lawsuit. In an opinion written by Circuit Judge James A. Wynn, Jr., the appeals court explained that reassignment to a vacant position was an accommodation of last resort and that the City had failed to prove that it could not have accommodated Wirtes in his police officer job by allowing him to wear a shoulder holster or exempting him from police assignments requiring a full duty belt.
In reaching this conclusion, Judge Wynn pointed to the EEOC’s Enforcement Guidance on Reasonable Accommodation, which advises that “[b]efore considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position.” Moreover, Judge Wynn opined that the “core values” of the ADA support treating reassignment as a “last among equals” of possible reasonable accommodations because employers should attempt to assist employees in doing “their present job rather than ‘hurl[ing] [them] into an unfamiliar position.’”
The Fourth Circuit’s decision in Wirtes emphasizes that the ADA’s reasonable accommodation requirements are meant to enable a disabled employee to perform the essential functions of that employee’s current job, if at all possible. Thus, in most cases, an employer likely will be judged to have violated the statute when it unilaterally reassigns a disabled employee to a vacant position instead of reasonably accommodating the individual in his/her current position.
To comply with your ADA obligations, therefore, you should engage in the interactive reasonable accommodation process in a full and complete fashion and carefully and thoroughly consider whether reasonable accommodations exist to keep a disabled worker in his or her current position. Only after the search for a viable accommodation has been exhausted should you consider offering an employee the “last resort” alternative of reassignment.