By: Karen L. Piper
The Eleventh Circuit Court of Appeals ruled that a disabled employee was not necessarily entitled to an open position when her disability interfered with her ability to perform her own job. The court also ruled that 30 days was a reasonable period of time for the disabled employee to apply for an alternate position when she could no longer work at her long-term position. EEOC v. St. Joseph’s Hospital, Inc., Case No. 15-14551 (December 7, 2016).
Ms. Bryk worked as a Charge Nurse on the psychiatric unit at St. Joseph’s Hospital for 21 years. During her last two years on the job, Ms. Bryk used a cane for support because of back pain and hip replacement surgery. Without the cane, Ms. Bryk could only walk short distances before she had to stop to realign her body and balance herself.
On October 21, 2011, Ms. Bryk was demoted for disciplinary reasons. Following her demotion, Ms. Bryk was advised she could no longer use her cane in the psychiatric unit because it posed a safety risk. Ms. Bryk was given 30 days to identify and apply for another position. Ms. Bryk went on vacation for two weeks. After she returned, she applied for seven positions during the last week of the 30-day period. Three applications were submitted on the last day. Ms. Bryk was not selected for any of these positions and her employment was terminated.
EEOC filed suit on Ms. Bryk’s behalf, arguing the hospital violated the Americans with Disabilities Act (ADA) by requiring Ms. Bryk to compete for vacant positions, rather than reassigning to a vacant position.
The appeals court affirmed that Ms. Bryk’s “gait dysfunction” was a disability. It also affirmed the trial court’s ruling that her use of a cane in the psychiatric unit was a safety risk. The court reviewed the hospital’s decisions to select other candidates over Ms. Bryk. In each case, the successful candidate had better qualifications. Ms. Bryk had worked for so long in the psychiatric unit that she admittedly had not kept up some of her practical skills, such as surgical wound care, which skills were needed for the open positions for which she had applied.
On the issue of whether the ADA requires noncompetitive reassignment, the court ruled that it did not. It explained:
- The ADA requires reasonable accommodation.
- The ADA does not say how an employer must accommodate.
- The ADA offers a non-exhaustive list of accommodations that may be reasonable.
- Reassignment to a vacant position is on that list, but its inclusion on the list does make it a required accommodation.
The court noted that the U.S. Supreme Court had ruled that the ADA does not require an employer to reassign a disabled employee to a vacant position if the assignment violates another employee’s seniority rights. U.S. Airways, Inc. v. Barnett (2002). Guided by this ruling, the court held that the hospital was not required to place Ms. Bryk in an open position. Though the hospital did not have a seniority system, it did have a policy of hiring the “best-qualified applicant.” Passing over the best-qualified candidate was not a reasonable way to promote efficiency or good performance, especially in the case of hospitals where “well-being and even the lives of patients can depend on having the best-qualified personnel.”
The court also found the 30-day period Ms. Bryk was given to find another job was reasonable. The hospital had told Ms. Bryk that the time period would be extended during the time she was under consideration for another position. It also allowed her to apply for other positions during the extension. And she did. She just was not the successful candidate for any.
This case does not hold that requiring a disabled employee to compete for a vacant position is always reasonable or that 30 days will always be a reasonable period of time for an employee to apply for a new position. It is also not binding on federal district courts in Michigan. Anyone with questions about how to accommodate a disabled employee should consult experienced employment counsel, such as the author.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of Detroit SHRM’s Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org.
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