23 Wake Forest J. Bus. & Intell. Prop. L. 117.
For thirty years, the Americans with Disabilities Act (the “ADA”) has sought to place disabled individuals on an equal playing field with other individuals in society. This objective is rarely contested in the modern age, especially when a disabled individual’s job is restructured, the facility is made handicap accessible, or the disabled employee is given special equipment to complete the essential functions of their job. Nonetheless, much controversy surrounds one reasonable accommodation in particular: mandatory reassignment of a disabled individual to a vacant position when they become unable to perform their previous role.
Some circuits assert that if an existing employee becomes disabled on the job, the employee is entitled, pursuant to the language of the ADA, to be reassigned to a vacant position as a reasonable accommodation. On the other hand, some circuits view reassignment merely as an option, and posit that employers are only required to give the disabled employee the opportunity to compete for a position. In sum, federal courts are inconclusive as to whether a policy of hiring the most qualified candidate will shield an employer from liability, or whether there is inherently a preference for a disabled employee who already works for that employer. This predicament is particularly troubling where a disabled employee is qualified for the position, is not chosen, and then has no other employment options.