Are Job Transfers Reasonable Accommodations Under the ADA and PWFA?

By Marjory Robertson, AVP and Senior Counsel, Sun Life; Brittany Lambert, Accommodation Consultant Lead, Sun Life

Under the Americans with Disabilities Act (ADA) and the Pregnant Workers Fairness Act (PWFA), a transfer or reassignment to a new job can be a reasonable accommodation. Employers may forget about this accommodation option — or may not be interested in discussing it — which can create a significant risk of liability.

As with many issues under the ADA, the outcome of court cases addressing this issue vary based on a variety of factors, including the judicial philosophy in a particular federal circuit and the individualized facts and sympathies they evoke. While there is no PWFA case law yet to help interpret job transfers as a reasonable accommodation, here are some insights based on the law (and proposed regulations from the Equal Employment Opportunity Commission (EEOC))¹ to help employers reduce risk in all cases involving this potential accommodation.

Job Reassignment as a Last Resort

Some courts refer to a job transfer or reassignment as an accommodation of last resort. They suggest that employers should make efforts to accommodate the employee in their own role first and consider job transfers only if that is not possible.

The EEOC has expressed a similar stance, indicating that the ADA only requires reassignment when there are no other accommodations that would allow employees to perform the essential functions of their current role or any such accommodations would pose an undue hardship. That being said, if reassignment is the preferred option for the employee and employer, it may be appropriate to consider a transfer rather than other accommodation options in the current role, depending on the facts and circumstances.

Obligation to Explore

Some courts also have ruled that an employee must ask for a job transfer while others put the burden on the employer to consider a job transfer if an accommodation cannot be granted for the employee in their current role. And while some courts require an employee to make a request, a statement as simple as “I’d like to keep working for you” may be sufficient to trigger an employer’s duty to evaluate whether a job transfer is possible.

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