Employers now understand, following the passage of the ADA Amendments Act, that the focus in disability discrimination cases is shifting away from whether the plaintiff was a “covered employee” as defined by the ADA, to whether the employer treated the employee differently because of his or her disability, or failed to provide the employee with a reasonable accommodation.  As such, it is essential that employers have both a well-written, easily understood Reasonable Accommodation Policy and a process in place to ensure that the individuals responsible for ADA compliance engage in the “interactive process” when an accommodation is requested.  Accommodation in his or her current position is always the preferred outcome, but when this is not possible, employers should explore reassignment to a different position as the next option.  A recent decision from the Tenth Circuit U.S. Court of Appeals (Colorado, Kansas, New Mexico, Oklahoma, Wyoming and Utah) provides some useful guidance regarding the positions an employer should consider when the disabled employee cannot remain in his or her original job.

In Duvall v. Georgia-Pacific Consumer Products, the Tenth Circuit affirmed a district court ruling that positions held by temporary employees were not “vacant” under the meaning of the (ADA) when the positions were also unavailable to similarly situated non-disabled employees.  The Tenth Circuit had previously held that when a disabled employee could be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee alongside other applicants; “it must offer the employee the vacant position.”  Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167 (10th Cir. 1999).  Left unanswered, until now, was the question of when a position is considered vacant.

Duvall, who suffered from cystic fibrosis, spent seven years in the shipping department of Georgia-Pacific’s Muskogee Paper Mill.  When the company decided to outsource the shipping function, Duvall was transferred to a different—and dustier— department, adversely affecting his health.  As an accommodation, Duvall sought reassignment to his previous position in the shipping department, where the air quality was better and in which he was medically able to work.  His request was denied because his former position, like the others in that department, had been filled with temporary employees, pending completion of the outsourcing initiative.  Similarly, Duvall’s subsequent request to be moved to the storeroom was denied because Georgia-Pacific was staffing that area with temporary employees while it considered outsourcing that area.  Duvall was eventually offered and accepted a position in the storeroom after the company decided to staff the storeroom with Georgia-Pacific employees.

The Tenth Circuit held that Georgia-Pacific did not violate the ADA because a position is “vacant” for purposes of reassigning a disabled employee if the position “would be available for a similarly-situated non-disabled employee to apply for and obtain.”  Because Georgia-Pacific’s business plan involved using temporary employees to fill positions during times of transition and forthcoming or possible outsourcing, and because Georgia-Pacific did not allow other Georgia-Pacific employees to fill the positions in the shipping department or storeroom, the positions were not “vacant.”  They were therefore unavailable to Duvall as reassignment options under the ADA.

This ruling does not represent an across-the-board determination that positions held by temporary employees will not be considered vacant and available for reassignment of a disabled employee under the ADA.  One open question, for example, involves what will happen when employers use employment agencies to place temporary employees in a temp-to-hire situation, and whether those positions would be considered vacant under the ADA.  Plus, it remains to be seen how other courts outside the Tenth Circuit will rule on this issue.

Employers should continue to use caution when evaluating employees for reassignment, once it is determined that they can no longer perform their regular jobs.  While the Duvall decision provides some clarity whenever you are faced with an ADA accommodation request, it is essential to evaluate the employee as an individual, as opposed to assuming a certain outcome based on his or her condition, and to make a good-faith effort to identify a reasonable accommodation, documenting your efforts along the way.  Nuance abounds in this area, and you will typically be well-served by consulting outside expertise—vocational, medical, and legal—to help you do all that the ADA requires of employers today.