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How far do you as an employer have to go to accommodate an employee under the Americans with Disabilities Act (ADA)? Although there is no comprehensive list of reasonable accommodations, the types of accommodations can generally be placed into one of four categories: (1) making changes to existing facilities; (2) providing assistive devices or personnel; (3) job restructuring or modified work schedules; and (4) reassignment to a vacant position. Of these four general categories, reassignment to a vacant position is the most controversial type of reasonable accommodation. The reassignment accommodation is a duty created under the ADA and even though it has been the subject of much litigation, its parameters have not yet been clearly defined. Reassignment also has a greater impact on non-disabled employees than other types of accommodations because reassignment may place a disabled worker in a position that is desired by other employees. Although reassignment presents a controversy, the following can serve as some guidance to employers. Reassignment as a Last Resort Reassignment is only required after it has been determined that there are no effective accommodations that will enable the employee to perform the essential functions of his or her current position, or that all other reasonable accommodations would impose an undue hardship. When reassignment is necessary, the reassignment should be to a position that is equivalent to the employee's current position in pay, status, location, and benefits. However, if no such position exists, the employer may reassign the employee to a lower level position with pay at a lower level. Reassignment is Required to Vacant Positions Only A vacant position is a position that is either available at the time the employee requests a reasonable accommodation or a position that the employer is aware will become open within a reasonable time. An employer is not required to "bump" another employee in order to create a vacant position for a disabled employee. The employer is also not required to create a new position for the disabled employee or promote a disabled employee to a higher position. Employee Must be Qualified The employee must demonstrate that he or she satisfies the requirements of the job and can perform the essential job functions of the new position with or without reasonable accommodation. The employer need not reassign an employee who is not qualified for the vacant position. Reassignment Must Not Constitute an Undue Hardship The employer is excused from reassigning a disabled employee if doing so would cause an undue hardship. The Equal Employment Opportunity Commission (EEOC) suggests that the terms of a collective bargaining agreement (CBA) may be relevant in determining whether an accommodation would impose an undue hardship. Undue hardship becomes an issue when reassignment of a disabled employee would violate seniority rights under a CBA. The Eighth Circuit Court of Appeals, which is the Court that considers Nebraska claims, has determined that an employer is not required to reassign a disabled employee when such reassignment would violate a seniority system. Entitlement to Reassignment The courts which have ruled on the issue disagree over whether a qualified disabled employee must be given the vacant position over all other applicants. The position of the EEOC and of some courts is that reassignment is noncompetitive--a qualified disabled employee gets the vacant position over even those who are more qualified. The EEOC and such courts take the view that the employer has not fulfilled the reassignment duty by merely allowing the employee to compete for a vacant position. However, other courts have determined that no preferential treatment for disabled employees is required. Reassignment to Light Duty Reserved for Occupationally Injured Employees Many employers reserve light duty jobs for employees with occupational injuries. The EEOC's position is that if such positions are provided to occupationally injured employees on a permanent basis, employers must reassign an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation if the position is vacant and there is no other effective accommodation available. The key is whether the employer provides light duty positions on a temporary or permanent basis. If an employer provides light duty positions only on a temporary basis, the company may provide temporary light duty positions to occupationally injured employees only.