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Reinstatement Rights Under The ADA's Reasonable Accommodation Rules

Reinstatement Rights Under The ADA's Reasonable Accommodation Rules

Employees who are protected under the ADA are entitled to reinstatement to their original job after taking a leave as a reasonable accommodation, unless this it is not possible or would present an undue hardship to the employer.

Because of this, a disabled employee whose condition was a result of an occupational injury or illness has the same protection, and the employer must keep this in mind when determining how to best "cover" the employee's responsibilities in his or her absence.

Generally, it would not be advisable for the employer to permanently place another employee in the disabled employee's position in the hopes that upon return another, like position will become open by the time the disabled employee is expected to return.

Example: Sally works at the ABC Company as one of several data-entry operators. Sally is hurt on the job, and her injury qualifies her for ADA protections. She will be taking a leave of absence from her job while she recovers from the injury. Managers at the ABC Company are concerned about keeping data-entry duties timely and "caught up" in Sally's absence. It would not be a good idea for these managers to permanently replace Sally, because she will be entitled to reinstatement to her original position upon return (unless she will not be able to perform the essential functions of her job with or without a reasonable accommodation). Instead, they should either find a temporary replacement who can work until Sally's return, or shift responsibilities to other data-entry operators in her absence.

It is also important to note that the Equal Employment Opportunity Commission (EEOC) has indicated that in some cases, an employee may request more leave after the employer has communicated that it would impose an undue hardship to hold an employee's position open any longer.

The EEOC indicates that in such a situation, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his or her leave for a specific period of time.

Though this guidance would appear somewhat odd on several levels, here is what employers should take from it:

  • If an employee's absence is expected to be significant, the employer should make a legal determination (in consultation with counsel) as to whether it would be reasonable to conclude that a leave of that duration would be considered an "undue hardship"
  • If so, the employer should not merely terminate the employee, but see whether there is a vacant, equivalent position to which the employee can be reassigned without undue hardship and, if none is available, look for a vacant position at a lower level
  • If an appropriate vacant position is found, reassign the employee to it with the expectation that the reassignment will be permanent
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