Impact on Outside Job Does Not Make an Accommodation Unreasonable

The U.S. Court of Appeals for the Fifth Circuit found that the employer offered a reasonable accommodation for an employee’s religious need, even though he argued the transfer offer was not reasonable.

In Horvath v. City of Leander, a firefighter sought an exemption from the required TDAP vaccine on religious grounds. The city offered him two accommodations – either to transfer to a code enforcer position with the same pay and benefits, or to remain in his current position and wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing. He proposed that he remain in his current position and just wear the mask when in contact with individuals with coughs or communicable illnesses. The city rejected his proposal, and when he refused to accept either of the city’s proposed accommodations, he was fired.

The firefighter sued, arguing that the city had failed to provide a reasonable accommodation. Specifically, as to the code enforcer position, he argued that the hours were less favorable and would prevent him from working his secondary employment – running a construction company – which would reduce his income by half. The Fifth Circuit, however, noted that the employer was not required to provide the accommodation preferred by the employee. Moreover, it also stated that a transfer that “may indirectly result in the loss of outside income” does not make the accommodation unreasonable. In fact, as the Fifth Circuit observed, even a transfer to a position involving a cut in pay can be reasonable, depending on the circumstances.

This case is a nice reminder to employers that they should consider transfers to another position as a reasonable accommodation, but that the transfer does not necessarily have to preserve the employee’s level of compensation, whether internal or external, depending on the circumstances.