When Is a Position "Vacant" Under the ADA?

A recent federal case presents the novel question of whether an employer's duty under the ADA includes the obligation to fulfill an employee's request for reassignment to a position held by a temporary worker. For the first time, a federal court of appeals was required to determine what makes such a position vacant for purposes of reasonable accommodation under the ADA.

Travis Duvall had worked in the shipping department of an Oklahoma paper mill for more than seven years when his employer, Georgia-Pacific Consumer Products, decided to outsource its shipping operations. Mr. Duvall transferred to a position in the converting department, and his former position was filled by a temporary contract worker in preparation for the planned outsourcing. In his new position, Mr. Duvall found that the increased exposure to paper dust worsened the symptoms of his cystic fibrosis. Mr. Duvall's doctor told the company that he could no longer work in the converting department. As an accommodation for his disability, Mr. Duvall requested to be reassigned to his former position in shipping until the outsourcing was made permanent. In the alternative, Mr. Duvall requested reassignment to a storeroom position. Because Georgia-Pacific was in the process of determining whether to outsource its storeroom work as well, the storeroom position, like the shipping position, was occupied by a temporary worker when Mr. Duvall made his request.

Georgia-Pacific refused Mr. Duvall's requests for transfer to positions that were already filled by temporary workers. After the company decided not to outsource its storeroom work, Mr. Duvall accepted a storeroom position at a lower rate of pay than he had received in the converting department position. Mr. Duvall then filed suit under the ADA, claiming Georgia-Pacific failed to reasonably accommodate his disability when it refused to reassign him to a position held by a temporary contract worker. The trial judge dismissed the case. On appeal, the Court of Appeals for the Tenth Circuit affirmed the decision. Absent evidence that Georgia-Pacific had offered any similarly situated, non-disabled employee a position held by a temporary worker, the court held that the company did not have to reassign Mr. Duvall to one of those positions because they were not vacant under the ADA. To interpret the ADA otherwise, the court reasoned, "would run the risk of transforming the ADA from an antidiscrimination statute into a mandatory preference statute."

This case should remind employers that the ADA requires a company to do more than merely consider a qualified disabled employee for a vacant position. If a position is vacant, the employer also must offer it. This case also serves as a reminder that the duty to accommodate is not without limit. Because the purpose of the ADA "was to place disabled employees on an equal footing with their non-disabled coworkers," an accommodation must be reasonable. The courts have held the duty to accommodate does not require an employer to eliminate or modify the essential functions of a position, nor does it require the employer to create a new position. Finally, an existing position may not be vacant for the purposes of the ADA if the employer does not make the position available for similarly situated non-disabled employees to apply for and obtain.

What Should Human Resources Be Doing to Prepare for Health Care Reform?

It's now mid-June 2010. Health care reform passed in March 2010. Feeling a bit panicky about how it will affect your workplace? You're not alone.

In the coming months, we plan to provide you details about what you should be doing now to prepare for required changes needed to comply with the Patient Protection and Affordable Care Act (PPACA).

Here are a few reminders of issues we have reported to you, and some things you should already be putting (or have) in place:

  • In April, we wrote to you about changes that the health care reform law made to the federal wage/hour law. Remember that employers are now required to give nursing mothers a break "each time such employee has the need to express the milk" for one year after a child's birth. For more details, read our article: Nursing Mothers Get Break(s) Under New Federal Law ( http://www.foley.com/publications/pub_detail.aspx?pubid=7017).
  • The PPACA expanded the definition of "dependent child" by requiring coverage for adult children until age 26. We reported on IRS guidance that has been released on this issue in our Tax & Employee Benefits Legal News Alert in May. For more details, read our article: PPACA Early Retiree Reinsurance Program ( http://www.foley.com/publications/pub_detail.aspx?pubid=7107).
  • Within six months after enactment of the PPACA, all existing health insurance plans must prohibit lifetime limits, prohibit rescissions, restrict annual limits, and include limitations on excessive waiting periods.
  • Employers with more than 200 employees must automatically enroll employees in health insurance plans offered by the employer, allowing for an employee opt-out. Effective date on this provision is not yet known.

Here are a few reminders of issues that will affect you in the future:

  • Businesses with fewer than 100 employees will have access to state health insurance exchanges starting in 2014. These exchanges are designed to help smaller businesses enroll their employees in small group qualified health benefits plans. For more information on how the exchanges will work, read our article at Will Proposed Health Insurance Exchanges Work and Be Affordable? ( http://www.foley.com/publications/pub_detail.aspx?pubid=7033)
  • Beginning in 2011, employers must report the value of employees' health benefits on W-2 Forms.
  • Beginning in 2014, group health plans must prohibit pre-existing condition exclusions and prohibit annual limits.
  • Beginning in 2014, employers with more than 50 full-time employees (FTE) that do not offer health insurance will need to pay a penalty of $2,000 per FTE.

Stay tuned as we update you on these and other requirements — and help you maintain the health of your HR compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.