One kind of reasonable accommodation that an employee who has qualifying disability may be entitled to under ADA or FEHA is reassignment to a vacant position. This typically happens where an employee suffers a serious injury that prevents him or her from performing the physically demanding parts of his existing job, but where an employee can perform lighter duty tasks, including administrative tasks and various desk job duties.
If you find yourself in a situation where you have been released from medical leave with limitations that prevent you from performing your regular job duties, it is important for both, protecting your job and for having the option of pursuing a disability discrimination / wrongful termination case in the future if necessary, that you inquire about whether there are any vacant positions within the company that you are qualified to apply for. This is because the ADA may require an employer to reassign a disabled employee to a different position as reasonable accommodation where the employee can no longer perform the essential functions of his most recent position. Although the employer doesn’t have to create a new position, the court have made it clear that an employer has a duty to reassign a disabled employee is an already funded, vacation position at the same level exists. Mengine v Runyon (1997).
Once it’s established that reassignment is a possible option for accommodation your medical condition, you should apply for as many of those positions as possible. Even though the employer has a certain obligation to offer you those vacant positions for which you might qualify, it’s always best for you to also show initiative. Later, if you are unfairly and unreasonably denied those vacant positions, and you are terminated, you will likely have a stronger wrongful termination case.
In litigation, an employee who claims discriminatory failure to accommodate has the burden of proving that there were vacant positions for which he was qualified, but for which he was not hired or not even considered. It is much easier for an employee to know which positions are vacant while he is still employed, rather than later, after the termination, where the employer has so many options to hide that kind of information or forget it. This is yet another reason why you should apply for as many vacant positions for which you believe you qualify, and keep records of all the vacant position that were available for which you applied for, in case you need to make a claim for failure to accommodate and wrongful termination later.