EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

July 18, 2002

Dear

This is in response to your letter of May 6, 2002, which we received on June 5, regarding the Americans with Disabilities Act of 1990 (ADA). You ask whether an employer who has reassigned an individual with a disability to a vacant position may terminate the employee because s/he did not successfully complete probation in the new position.

The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, which prohibits employment discrimination against qualified individuals with disabilities by employers with fifteen or more employees. An employer is required to provide reasonable accommodations to the known physical and mental limitations of otherwise qualified individuals with disabilities, as long as doing so would not result in a an undue hardship (i.e., significant difficulty or expense). As your letter notes, the ADA requires an employer to provide reassignment to a vacant position as a reasonable accommodation when an employee can no longer perform the essential functions of his/her current position, with or without reasonable accommodation.

Reasonable accommodations, including reassignment, are available to employees in probationary positions. If a probationary employee requires reassignment as a reasonable accommodation, an employer cannot deny this accommodation solely because of the employee's probationary status. If, however, the employee has never adequately performed the job's essential functions, with or without reasonable accommodation, then the employee is not entitled to reassignment because s/he was never qualified for the original position. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act at 40-41.

Moreover, the duty to provide reasonable accommodation is an ongoing one. Certain individuals require only one type of accommodation, while others may need different accommodations (e.g., when the nature of a disability or the job itself changes). The individual is entitled to those accommodations necessitated by the disability and that will provide an equal employment opportunity, as long as they do not create an undue hardship for the employer. Id. at 45.

The answer to your question depends on the reason the employee failed the probationary period and on whether the employee requested reasonable accommodation. For example, an employer may not deny a probationary employee with a disability a requested accommodation that would not have imposed an undue hardship and then terminate the employee for having failed the probationary period, if the denial of accommodation caused this failure. Additionally, if an employee with a disability who has been reassigned to a vacant position discovers during the probationary period that s/he is not qualified for the position and requests reassignment to a more appropriate position, the employer may need to consider further reassignment. On the other hand, if an employee fails a probationary period because of reasons unrelated to disability and never requested a reasonable accommodation, then the employer may take the same actions that it would take with respect to all employees who fail the probationary period, including termination. The ADA does not require different performance standards for individuals covered by the Act.

I hope this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues raised in your letter, and is not an official opinion of the EEOC. In addition, our failure to address any other matters that may have been presented in your letter should not be construed as agreement with statements or analysis related to those matters.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

This page was last modified on April 27, 2007.