Accommodate Despite Ability To Perform

By Ted Olsen

A cardinal rule of disability discrimination law has been that an employer must make reasonable accommodations for a disabled employee, so that the individual can perform the essential functions of his or her job, but the employer does not have to provide accommodations for the individual’s personal convenience or benefit.  Another cardinal rule in the Tenth Circuit has been that, when a disabled employee cannot perform the essential functions of his or her job, the employer must transfer the employee into any vacant position at the same or lower level relative to the employee’s existing position, for which the employee is minimally qualified.  Recently, in a case of first impression, the Tenth Circuit issued a decision making significant changes to these cardinal rules.  Sanchez v. Vilsack, Case No. 11-2118 (10th Cir. Sept. 19, 2012).  The Court decided in Sanchez that an employer must transfer a disabled employee into a vacant position, for which he or she is at least minimally qualified, despite the fact the employee is still able to perform the essential functions of his or her existing position, when the transfer would facilitate the employee’s medical treatment. Although medical treatment would seem to be for the employee’s personal benefit, and therefore not required, the Court held that the scope of the reasonable accommodation duty goes beyond the workplace.

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