Under the Americans with Disabilities Act, an employer may be required to reassign a disabled employee to an existing vacant position if he/she is unable to continue performing the essential function of their previous job. Last week, the Tenth Circuit Court of Appeals was called upon to determine the definition of a vacant position.

In Duvall v. Georgia-Pacific Consumer Products, L.P., the plaintiff suffered from cystic fibrosis and was unable to continue in his previous position due to dust exposure. As a reasonable accommodation, he requested that he be placed in an alternate position then occupied by a temporary worker provided by a third-party temporary staffing agency. GP refused the request, and he sued, claiming failure to accommodate under the ADA.

The Tenth Circuit affirmed dismissal of the claim. While the employer has a duty under the ADA to reassign a disabled employee to a vacant position consistent with their abilities, that assignment must still be reasonable. For example, the employer is not required to create a new job, promote the disabled employee or bump an incumbent employee from his or her job.

The term "vacant" is not defined in the ADA or under EEOC regulations. The Tenth Circuit used a plain language definition of the term. The court concluded that a position is only vacant under the ADA when it is available for a similarly situated non-disabled employee to apply for and obtain. To require the employer to displace temporary workers would convert the ADA to a mandatory preference statute by creating a new job for the disabled employee.

While not directly binding in the Fourth Circuit, Duvall is the first reported case defining the definition of vacancy under the ADA. This case supports employers that only consider reassignment to apply to jobs with no incumbents, temporary or otherwise.