Walmart changes its reassignment policy to settle ADA suit

UPDATE: Nov. 20, 2019: In a statement emailed to HR Dive, Walmart said it does not tolerate discrimination of any kind. "We’ve been a top employer for people with disabilities for many years and have thousands of associates who perform their jobs with reasonable accommodation, including job reassignment," a spokesperson said. Moreover, "we did agree to change our procedures as part of the resolution, but were already voluntarily doing it and had made plans to roll the program out nationwide by February of 2020."

Dive Brief:

Walmart has agreed to change its disability reassignment policy and pay $80,000 to a former worker with a disability to settle claims that it failed to accommodate her by reassigning her to a vacant position at another store, according to the U.S. Equal Employment Opportunity Commission (EEOC).
The EEOC accused the retailer of violating the Americans with Disabilities Act (ADA) in a lawsuit filed in federal court. The agency said that, after a sales associate at an Augusta, Maine, store became disabled, preventing her from continuing to work as a sales associate, Walmart determined that the only positions that could accommodate her disability were fitting room associate and "people greeter." Those positions weren't available at the store where she worked but there were three fitting room associate positions in nearby stores. Because of Walmart's policy requiring it to search for open positions only in the store where an employee worked, the woman was not transferred to any of the positions, EEOC alleged.
According to the commission, Walmart agreed to change its policy nationwide so that store employees with a disability are eligible for reassignment under the ADA as a reasonable accommodation and can request that Walmart search as many as five stores beyond an associate's present store location or in the home store's "entire market."

Dive Insight:

The ADA prohibits employers from discriminating on the basis of disability and generally requires employers to provide a reasonable accommodation to a qualified individual, unless the accommodation would pose an undue hardship. Reassignment to a vacant position as a reasonable accommodation is explicitly recognized under the federal law as a reasonable accommodation.

However, reassignment to a vacant position "is the reasonable accommodation of last resort." Employers should first consider reasonable accommodations that would enable the worker to remain in their present job, the commission says in guidance. But the agency takes the position that reassignment may be required after it has been determined that there are no effective accommodations that will enable the employee to perform the essential functions of the current position or all other reasonable accommodations would impose an undue hardship.

An employer is not obligated to help the person to become qualified for the new position, meaning that the employer does not have to provide training so that the employee acquires the necessary skills, according to EEOC. Employers do, however, have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position. The reassignment also must be to a vacant position that is equivalent in terms of pay, status or other relevant factors (such as benefits or location). If there is no vacant equivalent position available, the employer can offer a vacant lower level position.

Courts remain divided over whether the transfers must be non-competitive.