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ARTICLE · 16 AUGUST 2013

What Does It Mean That Disabled Employees Get "Preferential Consideration" For Open Positions?

Fox Rothschild LLP
Fox Rothschild LLP
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Imagine this situation: You’re in charge of HR for your company. Employee #1 is returning from a disability-related leave of absence, but her position is no longer available (assume that this wasn’t FMLA/CFRA or pregancy leave which usually require you to put the employee back in her old job).

United StatesEmployment and HR
Jeffrey Polsky
Jeffrey Polsky
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Imagine this situation: You're in charge of HR for your company. Employee #1 is returning from a disability-related leave of absence, but her position is no longer available (assume that this wasn't FMLA/CFRA or pregancy leave which usually require you to put the employee back in her old job). There is, however, an open position that Employee #1 qualifies for. But Employee #2 is better qualified for that open position and, while there's no formal seniority plan, she's been there longer.

The manager will undoubtedly press for the better qualified candidate. Do you have to tell the manager to take the less-qualified employee returning from a disability leave?

Under the latest DFEH regulations, and case law that preceded them, the answer is "yes." Giving the employee a list of open positions and telling her to apply for any that interest her is not an accommodation. She already had that right. According to the regs:

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