(1) When an employee with a disability can no longer perform the essential functions of their position with or without a reasonable accommodation, the agency manager shall consider reassigning the employee to an equivalent vacant position unless doing so would create an undue hardship. The employee shall concur with the reassignment.

(2) When reassigning an employee to a vacant position as a reasonable accommodation, agency managers shall:

(a) do so without a competitive process;

(b) consider any implications under a seniority system of a collective bargaining agreement;

(c) attempt to reassign a qualified employee to a vacant position equivalent in pay, status, and other relevant factors (e.g., benefits, geographical location); and

(d) continue the interactive process after reassigning an employee to ensure the employee is able to perform the essential functions of the job, with or without a reasonable accommodation.

(3) If reassigning an employee would violate a seniority system or collective bargaining agreement, it is not reasonable to reassign an employee.

(4) If an equivalent vacant position is not available, management may reassign the employee to a lower-pay position, provided the employee is qualified and agrees to the transfer.

(5) "Vacant" means the position is available when the employee asks for an accommodation, or the employer knows a position is to become available within a reasonable amount of time. Agency managers shall determine a reasonable amount of time on a case-by-case basis.

(6) Agency managers are not required to create a new position as a reasonable accommodation.

History: 2-18-102, MCA; IMP, 2-18-102, MCA; NEW, 2011 MAR p. 1668, Eff. 8/26/11.