Riverside County Human Resources Department Reasonable Accommodation Non-Compliance

Currently HR engages in the interactive process and determines that an employee, identified as needing reasonable accommodations, has work restrictions. If these restrictions cannot be reasonably accommodated within his/her current position or by being reassigned within his/her department, HR will search for other vacancies throughout the County for positions for which the Accommodation Candidate Work Restriction List (AR/List) candidate is qualified. HR’s current procedures are not in compliance with federal statutes in that they do not provide reasonable accommodation for a disabled employee when accommodations cannot be accomplished within the disabled employee’s current position or department. The current practice is that HR places the disabled employee on an AR/List. The employee is then referred to the hiring department and interviewed, thus “competing”, for vacant positions in other departments. The employee remains on this list until placed in a vacant position, or until a specified time period has elapsed, generally 90-days, depending on whether or not he/she is vested in a retirement plan. Any type of meeting between an AR/List individual and a hiring official, whether cloaked as a “skills verification meeting” or a similar meeting, constitutes an interview; an interview constitutes competition, thus is a violation of the ADA. The EEOC Enforcement Guidance document was originated by the ADA Division, Office of Legal Counsel Number 915.002 and examines reassignment as a form of reasonable accommodation and specifies who is entitled to reassignment and the extent to which an employer is required to search for a vacant position. Under the subsection entitled “Types of Reasonable Accommodation as Related to Job Performance”, discussion item Number 29 asks: Does reassignment mean that the employee is permitted to compete for a vacant position? No. Reassignment means that the employee gets the vacant position if she/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended. REFERENCES 42U.S.C. §12111(9)(b) (1994) 29 C.F.R. pt. 1630 app. §1630.2(c) (1997). See Senate Report, supra note 6, at 31 (“If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker.”) See Wood v. County of Alameda, 5 AD Cas. (BNA) 173, 184 (N.D. Cal. 1995) (when employee could no longer perform job because of disability, she was entitled to reassignment to a vacant position, not simply an opportunity to “compete”); cf. Aka v. Washington Hosp. Ctr., 156 F. 3d 1284, 1304-05, 8 AD Cas. (BNA) 1093, 1110-11 (D.C. Cir. 1998) (the court, in interpreting a collective bargaining agreement provision authorizing reassignment of disabled employees, states that “[a]n employee who is allowed to compete for job precisely like any other applicant has not been “reassigned”); United States v. Denver, 943 F. Supp. 1304, 1310- 11, 6AD Cas. (BNA) 245, 250 (D. Colo. 1996) (the ADA requires employers to move beyond traditional analysis and consider reassignment as a method of enabling a disabled worker to do a job). The Grand Jury investigation revealed that AR/List individuals are currently being referred by HR personnel for interview by department personnel, contrary to EEOC guidance. HR refers to an AR/List employee interview as a “skills verification interview” and is relying on the interviewing official to make the final qualification determinations.