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ADA accommodation: what's difference between reassign to a vacant position and change supervisor?

San Jose, CA |

ADA says reassign to a vacant position is reasonable accommodation but change supervisor is not. It seems to me the same. Can someone tell me the difference?

Attorney Answers 3


  1. Best answer

    Reassignment to a vacant position is simply what it says: putting the disabled employee into a position within the company that already exists, but for which there is no employee presently assigned. Generally, it will be a position whose essential functions are capable of being performed by the employee with or without accommodations for the employee's restrictions. While the reassignment might mean the employee has a different supervisor, that is not necessarily going to be the case. The reassignment, might be to an open position under the same supervisor.

    Changing the supervisor is just that - either moving the supervisor to another position, or moving the employee under another supervisor. It is very different in concept.

    Do not get caught up with what the ADA says if you are a California employee. The ADA and its regulations promulgated by the EEOC are helpful but not dispositive. The FEHA and the regulations promulgated by the DFEH should be what you proceed under.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  2. In addition to the previous answer -

    Under ADA and FEHA (the more important law than ADA for your purposes), an employer doesn't have to provide a perfect accommodation or an accommodation that you want; it only has to be "reasonable." There is no bright line rule as to which accommodation is reasonable, and it should determined through a flexible discussion or "interactive process."

    Thanks,

    Arkady Itkin
    San Francisco Employment Lawyer


  3. To elaborate a bit on Mr. Pedersen's excellent answer, "FEHA" stands for the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). As Mr. Pedersen indicated, the FEHA is more favorable for employees than the ADA. You can see this for yourself by reviewing two documents:

    Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.

    Please look at my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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