Since the Americans with Disabilities Act (ADA) took effect decades ago, employers have struggled with various aspects of implementation.

To resolve those issues, the U.S. Supreme Court has weighed in several times, and Congress drastically overhauled some of the law’s primary provisions in 2008. But some questions remain unanswered, even as the law approaches its 30th anniversary. Among them is whether an individual with a disability who can no longer carry out a job's essential functions is entitled to a transfer to a vacant position — even if there are other, more qualified candidates.

The statute itself mentions reassignment as a potential accommodation but doesn’t say whether the transfer must be noncompetitive. Regulations from the U.S. Equal Employment Opportunity Commision (EEOC), which enforces the ADA, go no further. 

The agency has, in a guidance document, taken the position that reassignment must be noncompetitive. "Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended," according to the guidance. Notably, however, courts place less weight on guidances than regulations. 

Naturally, federal appeals courts are split on the issue. Some agree with the EEOC, opining that because anyone — employee or not — can submit an application for any opening at any time, merely continuing to allow that would be, as one court put it, "no accommodation at all." Others have concluded that noncompetitive reassignment would amount to "affirmative action with a vengeance" — something the ADA doesn’t require.

And the Supreme Court declined to take up the question on multiple occasions before finally agreeing to remedy the split in 2008, only to have the case settle before it had the chance.

For now, the answer to the reassignment question remains unknown. As with many of the decisions you make, it may be a matter of weighing risk. Keep in mind that the law doesn’t require employers to grant an employee’s preferred accommodation, only an effective one; EEOC itself calls reassignment "the reasonable accommodation of last resort." And if you find yourself headed down that path, you can read EEOC's guidance, check on applicable circuit precedent and make an educated decision. It also may be worth noting during your hiring process that the ADA doesn’t protect workers without disabilities from discrimination based on their non-disabled status.

For now, employment attorneys say, employers are left to consider those factors and then consult with counsel.