As part of the interactive process, employers should evaluate suitable alternate, vacant positions for an employee with a disability. Employers must offer employees with disabilities alternative positions, for which they are qualified, when:

• The employee can no longer perform the essential functions of the current position even with accommodation; or
• Accommodation of the employee’s current position creates undue hardship; or
• Both the employer and the employee agree that reassignment is preferable to an accommodation in the current position; or
• The employee requests reassignment to gain access to medical treatment for a medical condition that isn’t easily accessible at the individual’s current location.2

If there are no funded, vacant comparable positions available for an employee with a disability, the employer may reassign the employee to a lower graded or lower paid position.

An employer isn’t required to create a new position to accommodate an employee with a disability to a greater extent than an employer would offer a new position to any employee, regardless of disability.

An employee with a disability is entitled to preference in reassignment to a vacant position over other applicants and existing employees. Although an employer isn’t ordinarily required to ignore its seniority system/policy to accommodate an employee, the violation may be reasonable for accommodating a disabled employee if the employer reserves the right to modify its seniority system or regularly allows variations to the policy. For more information, see Seniority System and Accommodation.

Employers should only reassign employees returning to work from a disability to an alternative position after participating in the interactive process.3 During the interactive process, employers may offer to reassign a disabled employee to a temporary position, which the employee may choose to accept or reject. However, assignment to a temporary position isn’t considered a reasonable accommodation under California’s disability regulations.

Reasonably accommodating an employee with a disability doesn’t include putting an employee into a position for which that person isn’t qualified, nor is an employer required to continue to employ the person on an open-ended leave of absence while waiting for an appropriate vacant position to arise.4

If an employee requests reassignment due to the stress or anxiety caused by a particular supervisor, employers may not have to accommodate the reassignment. Under California law, courts have held that an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance doesn’t constitute a FEHA-recognized disability.5 However, it’s important to note that such an employee may still be protected by multiple laws. For example, the employee may be entitled to take leave under the CFRA and/or FMLA for a serious health condition or may be entitled to a leave as a reasonable accommodation under the FEHA or ADA while they seek treatment.

• Always engage in the interactive process and proceed with caution when managing disability accommodations. Consult legal counsel about whether a job function is essential or before deciding to deny an accommodation request or terminate an employee requesting reasonable accommodation.

1. 2 CCR sec. 11068(d)