Reasonable accommodation. Those are words that can keep employers up at night. Often, it’s not clear what is a mandatory reasonable accommodation for an employee with a disability or what is an accommodation that imposes an undue hardship on the employer.

A recent 7th Circuit opinion, EEOC v. United Airlines, Inc., re-examined whether transferring an employee with a disability to a vacant position is a required reasonable accommodation under the Americans with Disabilities Act (ADA). Under the 7th Circuit’s old analysis of EEOC v. Humiston-Keeling, the court held an employer is not required to reassign an employee to a vacant position when they are no longer qualified for their previous position due to a disability.

The 7th Circuit changed course when asked to look again at this rule by the EEOC in light of the Supreme Court’s opinion in U.S. Airways, Inc. v. Barnett. There, the Supreme Court determined that transferring an individual with a disability to a vacant position would not be a reasonable accommodation where that reassignment would violate a seniority system in place. However, the 7th Circuit described that the seniority system in Barnett was a fact-specific exception to the general standard laid out by the Supreme Court and violation of that seniority system would have caused a hardship on the employer.

Instead, the 7th Circuit found that its previous Humiston-Keeling opinion did not follow the Supreme Court’s finding that reassignment to a vacant position is a reasonable accommodation. A two-step analysis is required under Barnett: first, the employee must show that the accommodation is a type that is reasonable in the run of cases; second, the employer must then demonstrate that the accommodation would impose undue hardship in the particular circumstances. Even if the employee is unsuccessful in showing that the accommodation is reasonable, the 7th Circuit noted the employee can still be successful “by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case.”

This new opinion is important for Illinois, Indiana, and Wisconsin. Where an employee with a disability is unable to continue in their current role, an employer will likely need to consider granting a request to a vacant position that the employee is qualified to fill. The EEOC v. United Airlines, Inc. opinion strongly suggests it is only in a narrow set of circumstances where the employer may claim undue hardship to deny the request.

It also reminds employers that they should evaluate their policies and practices to ensure compliance with disability discrimination law in light of the Americans with Disabilities Act Amendments Act (ADAAA).

• It is best to assume that the employee has a disability in light of the expanded protections offered by the ADAAA. Unless, the employee has a common cold, etc., it is more prudent to focus on accommodation and fairness issues.

• Make sure your job descriptions are up to date and describe the essential functions of the job. It is best to review your job description annually.

• Obtain documentation from a medical professional and job analysis professional before making reasonable accommodation decisions.

• As recommended by the EEOC, engage in the interactive process of reasonable accommodation with the employee to determine what the employee wants and what the employee needs. The employee’s requested accommodation could be very easy to do. Try to accommodate the employee in their current job. If that is not possible, consider transferring the employee to a similar job, or even a different job. However, you do not have to create new jobs, layoff other employees or create light duty positions.

• Remember to get professional and legal advice when encountering thorny issues.