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Unilateral Reassignment is Least Desirable Accommodation

The Fourth Circuit Court of Appeals held, “[I]t is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists” that would allow the employee to keep their current position.

Michael Wirtes worked as a police officer for the City of Newport News. For four years, Wirtes experienced increasing pain in his back and leg because of his duty belt. This belt held his pepper spray, gun, taser, baton, handcuffs, flashlight, radio, and body camera battery pack. He developed permanent nerve damage. He requested reassignment to a unit that would allow him to continue serving without wearing the belt. Initially, the department agreed, and he worked as a patrol officer in the Records Unit wearing a shoulder harness. When a new police chief came in and transferred Wirtes to another unit, Wirtes was still able to work without wearing the belt. However, the police department then changed its policy to require all officers to wear a duty belt. Wirtes requested an accommodation, such as wearing the shoulder holster he had been wearing for the last 5 years. The City rejected his request and instead offered him a civilian job. He sued the department for failing to provide him a reasonable accommodation under the Americans with Disabilities Act (ADA).

The circuit court joined other circuit courts and the EEOC in “recognizing that reassignment is the ADA’s accommodation of ‘last resort.’” Courts have previously held that employers are under no obligation to offer reassignment. In this novel case, the court looked at what happens when an employee wishes to remain in their current position and can perform the essential functions of the position with reasonable accommodation. According to the court, an employer must first consider accommodations that would allow the employee to remain in the current position. The court noted there may be circumstances when an employer may reassign the employee, but it is strongly disfavored.