When an employee who is arguably disabled under the law asks to be transferred to a different job, in a different state, as an accommodation for her disability, do you have to agree? A recent case suggests the answer may be, “Yes.”
In cases over the last couple decades, the 10th Circuit Court of Appeals (which covers Colorado) has held that, pursuant to the Americans with Disabilities Act (ADA) and the Rehabilitation Act:
– a disabled employee unable to perform the essential functions of his current job may be entitled, as a reasonable accommodation, to transfer to another vacant job for which he is qualified, provided transfer does not cause the employer undue hardship;
– time off for medical care or treatment may also constitute a reasonable accommodation; and
– even where a disabled employee can perform the essential functions of his job, reasonable accommodation may include time off for medical treatment to mitigate the effects of the disability.
Sanchez v. Vilsack
The 10th Circuit has now taken things a step further. The question before the 10th Circuit in Clarice Sanchez’ Rehabilitation Act suit against the U.S. Forest Service was whether a job transfer from Texas to New Mexico allowing her to access medical treatment could be a required, reasonable accommodation for her disability, even though she could perform the essential functions of her job. The 10th Circuit says, yes, as a matter of law it may. Sanchez v. Vilsack, No. 11-2118 (10th Cir. Sept. 19, 2012).
Ms. Sanchez, then an administrative assistant, suffered an irreversible brain injury as a result of a fall at work which caused her to lose 50% of her field of vision in each eye, meaning she cannot see anything left of the center of her vision when she looks straight ahead. She was able to return to work and although she experienced difficulties, there was no dispute she could perform the essential functions of her job. Nonetheless, she requested a hardship transfer from her position in Lufkin, Texas to Albuquerque “because no doctors in Lufkin were qualified to provide specialized therapy to help her adjust to her injury.” Although the Forest Service granted her temporary reassignment to Albuquerque, she was turned down for two equivalent-pay positions in Albuquerque for which she was qualified, and ultimately took a different, lower-paying Forest Service job in Albuquerque. She then sued under the Rehabilitation Act (which is similar to the ADA, but generally applies to public entities) arguing that the denial of her transfer request was a failure to reasonably accommodate her disability.
In addition to arguing that Ms. Sanchez was not disabled, the Forest Service argued that under existing 10th Circuit law, a job transfer is required only where the employee’s disability prevents her from performing the essential functions of her current job. In reaching its decision, the court relied on contrary decisions in other circuits, as well as the EEOC’s position. In particular, the court found language from a similar 9th Circuit case most persuasive:
[C]ontrary to what the government urges, employers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job. Qualified handicapped employees who can perform all job functions may require reasonable accommodation to allow them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their handicaps. In other words, an employer is obligated not to interfere, either through action or inaction, with a handicapped employee’s efforts to pursue a normal life.
Accordingly, the court held that, as a matter of law, a transfer accommodation for “medical” care, treatment or therapy may be a reasonable accommodation, “even if an employee is able to perform the essential functions of her job without it.” The court expressly did not reach questions of whether such an accommodation would impose an undue hardship for the Forest Service, or whether or not a transfer was really necessary for Ms. Sanchez to access treatment.
In its simplest terms, the Sanchez case means that employers must at least consider job transfers to open positions, for which the employee is otherwise qualified, as a possible accommodation to allow a disabled employee to access medical care, treatment or therapy that is not locally available, even when such treatment relates to general quality of life rather than to performance of essential job functions. However, based on the court’s opinion, it appears the employee would still bear the burden to prove that a transfer accommodation is reasonable because the treatment sought is:
– medical care, treatment or therapy;
– necessary to mitigate the effects of the disability or otherwise to improve the employee’s work or home life by assisting her to cope with her disability; and
– not locally or otherwise reasonably accessible without the transfer.
Of course, employees are not always entitled to the accommodation of their choice, so if an equally effective accommodation exists—aside from a job transfer—then a transfer may not be required. Likewise, although typically difficult to prove, undue hardship to the employer remains a viable defense.