Last week, the U.S. Supreme Court decided not to accept review of a case from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) dealing with employers' obligation to transfer employees to alternative jobs under the Americans with Disabilities Act. If an employee is unable to perform the essential functions of his or her current job due to a disability, transfer may be a last resort if no other accommodations are effective. The Fourth Circuit case considered whether the disabled employee must be given the alternative job, or only allowed to compete with other non-disabled applicants for the position.

In Fink v. Richmond, the plaintiff was a Maryland teacher who could not continue her previous job after surgery for esophageal cancer. She requested transfer to a vacant high school teaching position she contended better accommodated her disability. The school district refused to place her in this vacant position, and instead moved her to a substitute teacher position. She sued, alleging failure to accommodate under the ADA.

The Fourth Circuit held that the ADA does not require employers to place a disabled applicant in an alternative position if it has a neutral policy of hiring the best applicant for the job. The EEOC and several other federal appellate courts take the position that the ADA's accommodation provisions require employers to give the job to the disabled employee without having to compete with other non-disabled persons.

Last year, the Supreme Court accepted review of a similar case and appeared poised to resolve this split, but that case settled before oral arguments were held. The plaintiff asked the Court to review the Fourth Circuit decision for the same reasons. The school district contended that it had provided accommodation in the form of the substitute teaching position, and that this was really a case about employers' right to choose an effective accommodation over the employees' preferences.

The Supreme Court's denial of review means that the split between the appellate courts will continue for the time being. For employers in the Carolinas, current law appears to support the position that they are not required to automatically assign a disabled employee to an alternative job over better qualified candidates.