Is Transfer a Reasonable Accommodation? Depends on Whom You Ask.

Massachusetts state courts have held that under Mass. Gen. L. Ch. 151B an employer is not required to transfer an employee to another position as a reasonable accommodation.   Specifically, in Russell v. Cooley Dickinson Hospital, Inc., the Supreme Judicial Court held that an employer does not need to create a new position when an employee is not capable of performing the duties of his former position.  Since that decision, Massachusetts lower courts, citing Russell, have held that Mass. Gen. L. Ch. 151B does not require an employer to provide a reasonable accommodation in the form of reassignment to a new or different position.   And even before the Russell decision, at least one Superior Court case, Hayward v. Massachusetts Water Resource Authority, held that transfer to a new position is not a reasonable accommodation under Mass. Gen. L. Ch. 151B.  Of course, this is only the state law rule: under the Americans with Disabilities Act, transfer of a disabled employee to a vacant position for which he is qualified is a reasonable accommodation under federal law.  But until recently, in cases that relied on state law, an employer would not be held liable if it failed to transfer a disabled employee.

In a recent decision by the Full Commission of the Massachusetts Commission Against Discrimination (MCAD) , however, the MCAD chose to ignore the well-established rule and, instead, held that the employer was required to transfer the employee as a reasonable accommodation.  The Full Commission’s decision in Anderson v. United Parcel Service affirmed the Hearing Officer’s decision, which will allow the Complainant, absent an appeal, to collect more than $575,000 from his former employer, plus interest.

In Anderson, a long-term employee who suffered from bipolar disorder and depression was employed as the night shift pre-load manager.  He alleged that due to his illness, he was unable to sleep and that the stress of the position was increasing the severity of his illnesses.   The employee admitted that he could not perform the essential functions of his managerial position with or without a reasonable accommodation, and as a reasonable accommodation, he asked that he be allowed to step down from the pre-load manager position and be reassigned to a less stressful position, such as a non-managerial position or  lower level supervisory position, on the day shift.  UPS declined his request, and the employee was terminated.

Of course, when the employee sued, UPS argued that it was not required to transfer him to another position as a reasonable accommodation.  However, after a public hearing, the MCAD disagreed.  The Hearing Officer reasoned, and the Board later affirmed, that transfer was a reasonable accommodation based on the size of the employer, the many available positions the employee was capable of performing, and the fact that UPS often transferred people to different positions to meet its needs.

So, what will happen next? We’re waiting to see if the employer appeals. But court decisions overturning decisions of the full Commission are rare.  It seems clear that the the MCAD may choose apply this standard, despite case law to the contrary.  Whether it chooses to apply this standard only in certain circumstances, such as those at UPS where the employer often transferred non-disabled employees from one position to another remains to be seen.  This will be an important issue to watch as it continues to unfold.

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