If disabled employees are no longer able to perform the essential functions of their job even with reasonable accommodation, under the Americans with Disabilities Act the employer must consider transferring the workers to an available vacant job that meets their qualifications. However, can an employer transfer those employees when they may be able to remain in their old position with certain accommodations? According to a new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia), employers may only look to transfer a worker after other accommodation options have been exhausted.

In Wirtes v. City of Newport News, a police officer was no longer able to wear his duty belt due to a nerve condition. The city offered the officer two alternatives: early retirement or transfer to a civilian position that did not require use of the belt. The employer rejected the employee’s proposed accommodation of use of a shoulder holster as an alternative to the belt. He declined the alternatives offered by the city and sued, alleging failure to provide reasonable accommodations under the ADA. The district court disagreed, dismissing the claim on the basis that the transfer was an acceptable accommodation.

On appeal, the Fourth Circuit reversed this dismissal, remanding the case for additional proceedings. The appeals court noted that the district court failed to determine whether wearing the duty belt was an essential function of the police officer’s job, or whether use of the shoulder holster was a reasonable accommodation. However, the Fourth Circuit noted that transferring an employee against his stated preference is an accommodation of last resort, and it should only be considered in unusual circumstances where there are no viable accommodations that allow the employee to remain in his previous job.

This decision places the Fourth Circuit in accord with other federal appellate courts and the Equal Employment Opportunity Commission. The ADA accommodation process requires employers to consider (and document) reasonable measures that return the employee to his or her regular job before considering alternatives.