Disability Discrimination – When You Need To Transfer And When You Don’t

Recent cases from the Massachusetts Commission Against Discrimination and the Massachusetts Appeals Court offer guidance for when you have to offer an employee a transfer as a disability accommodation and when you do not.

What You Need To Know.  There is no fixed rule on offering a transfer or new job in response to a request for an accommodation.  As set forth below, each case will be reviewed based upon its specific facts.  But, don’t let anyone tell you that you never have to transfer an employee or that you must transfer an employee if the employee makes this request to accommodate a disability.

Under Massachusetts law, employers have traditionally been advised that they are not required to transfer an employee to a new job if the employee’s disability prohibits the employee from performing his or her current job.  Historically, courts have only required an employer to accommodate the employee in performing his or her specific job.  The “no-need-to-transfer” rule is not, however, absolute.  Two recent cases identify situations where a court will and will not expect an employer to consider transfer as a reasonable accommodation.

In a December 9, 2013, decision, the Massachusetts Commission Against Discrimination ruled that UPS had a duty to explore whether an employee with a disability, who could not perform his current job, was qualified for vacant positions.  In Anderson v. United Parcel Service, the MCAD recognized that an employer was “generally not required” to offer a transfer as a reasonable accommodation.  The Commission went on to say, however, that transfer could be a reasonable accommodation in a case where the employer had multiple open positions, the employee was qualified for the positions, and the employer had a practice of routinely moving employees between jobs to meet business needs.   In this case, the employee had previously worked in many of the open positions with success.  Because of this, and because UPS made “frequent and routine transfers of managerial and supervisory employees at the discretion of the company,” the court found that a job transfer was a reasonable accommodation that UPS could perform.

In a separate case, the Massachusetts Appeals Court found that transferring a teacher to a non-teaching position would not be a reasonable accommodation.  In the case Silvestris v. Tantasqua Regional High School (December 31, 2013), the school district offered numerous accommodations to support the teacher.  During the lawsuit, the teacher testified that he should have been offered a nontraditional job at the school that did not involve classroom teaching.  He had not, however, applied for the position.  On these facts, the court stated that the school district had no obligation to offer Silvestris a different job when he could no longer perform his job.

These cases show that the law does not usually require transferring and employee as a reasonable accommodation to a disability.  But, if an employer has numerous open positions that the employee is qualified to perform and the employer has a practice of moving people between jobs to meet operational demands and the employee requests a transfer, the employer should consider transferring the employee as a reasonable accommodation.  In a case where transfers pose no great hardship, the employer should seriously consider it as an option to accommodate a disabled employee.

Decisions surrounding disability and accommodations are fact specific and complicated.  When faced with a request for an accommodation, you should seek the counsel of an experienced lawyer.  EmCo Consulting, LLC has the experience to help you review and respond to employee request for accommodation.  Please contact EmCo for assistance.