Vacant Position: Reasonable Accommodation for Disability

Under the Americans with Disabilities Act (ADA), placing a disabled employee (who is qualified) in a vacant position has always been a reasonable accommodation. But when is a position vacant? That may seem like a question easily answered, but not always. The recent case of Duvall v. Georgia-Pacific Consumer Products, decided by the Tenth Circuit Court of Appeals, shows why.

An employee worked in the shipping department. The employer decided to outsource shipping operations. During the outsourcing transition, shipping employees were allowed to bid for jobs in other departments. To the extent shipping jobs remained in existence during the transition, they were filled by temporary workers.

The employee in this case secured a job in the converting department, which had a dusty environment. After two months, however, he unable to continue working because the dust interfered with his breathing and aggravated his medical condition of cystic fibrosis. The employer offered the employee another job in the storeroom, which he eventually accepted.

The employee still insisted that there were vacant jobs in his old shipping department. He wanted one of them. The employer refused. The employee filed suit, claiming the employer had failed to provide an existing vacant position as an accommodation and was guilty of disability discrimination.

The Tenth Circuit ruled against the employee. According to the court, all shipping jobs were being filled with temporary workers until the department was permanently outsourced. Under those circumstances, there were no vacant shipping jobs for the employee.

It’s arguable that this case could have gone the other way. There were temporary, vacant jobs in shipping, and the employee was entitled to one of them until shipping was completely outsourced. In any event, this case demonstrates the tricky nature of reasonable accommodation issues. It also underscores the importance of engaging in the interactive process with an employee who has requested an accommodation.