- Blog post
ADA accommodations: Do jobs held by temps count as ‘vacant’?
The ADA says that reassigning an employee to a vacant position is one way of accommodating the person’s disability.
But what does “vacant” mean? A worker in Oklahoma recently argued that positions occupied by temps were vacant, but the federal courts disagreed.
The worker, who had cystic fibrosis, was told by his doctor that he couldn’t work on the production line of a paper mill. He sought reassignment to a department where the air wasn’t full of paper dust. There were two such departments, staffed at least partly by temps from an outside agency.
But for three months, the employer said it had no appropriate open jobs, and the worker had to go on short-term disability. After that, a job came open and the worker moved into it. He sued, claiming the employer failed to accommodate him for the three-month period.
But the courts rebuffed him. The jobs he claimed were vacant, weren’t.
An appeals court said a position is vacant in the ADA context “if it would be available for a similarly situated non-disabled employee to apply for and obtain.” In this case, the jobs held by temps weren’t available that way. And the employer didn’t have to create a job to accommodate the worker.