Costly Bad Advice

By Barbara Haga, April 19, 2017

I was going to write about performance plans this month, but a situation about some advice given by an HR practitioner has been gnawing at me for a while and I need to vent.

Background

Commonly a situation comes up in a class somewhere where a supervisor wants a second opinion on the advice that he or she was given regarding a particular scenario.  I usually start with the caveat that there are local issues, local past practices, union contract provisions, etc. that I am not privy to that might change the answer.  Sometimes the answer I give is significantly different than what their legal office or HR office advised.  I try to make them feel better by telling them that this is art and not science, and two practitioners looking at the same facts may very well come up with different approaches to a particular situation.  Sometimes, I tell them I learned this business in an agency that was known for being tough on disciplinary and performance problems, so my answers may suggest stronger approaches than what is typical in their agencies.  But, sometimes when I hear the answers that were given, my jaw drops and I am speechless.  This is one of those cases.

John, the Firefighter

A Firefighter, who we will call John, sustained a severe hand injury outside of work.  The projected recovery period was going to be several months.  As a result of this injury, John was unable to meet the lifting, carrying, pulling, and climbing functions of his job.  A Firefighter must be able to lift and carry someone, climb ladders, operate equipment, handle hoses, put on firefighter gear, etc.  John could not perform these requirements per the medical certification that he provided from his health care provider.

In addition to the Firefighter qualifications, there is also a requirement to be a certified Emergency Medical Technician (EMT).  In order to fulfill those duties, there could be a need to lift and turn a patient, put a patient on a stretcher, insert an IV, etc.  All of these duties were things that John’s injury prevented him from doing.

Apparently, John was a good employee and the Fire Department was willing to wait for him to be able to return.  Unfortunately, John’s injury kept him out of work long enough that he ran out of leave.  So, he asked to come back to work.  In a Fire Department, there must be X number of qualified Firefighters on duty for each piece of equipment at each station at all times.  For example, when there are not enough Firefighters arriving in the morning for the new shift, someone from the prior shift is held over on overtime to fill the gap.  The bottom line is that there is no such thing as a “light duty” Firefighter.  An injured Firefighter might be sent to work in Dispatch or could be assigned to the Inspection Unit to work while he or she is physically disqualified, but those slots are limited.  Often those slots are held for Firefighters on light duty as a result of an on-the-job injury, since keeping those individuals at work reduces the chargeback costs under Workers’ Comp.  So, John was advised that there was no light duty work available.

Up to this point, everything made sense.

The Advice from HR

Somehow the matter was referred to HR.  I don’t know how that happened.  It may have come up as a reasonable accommodation request, or it may have been raised by the union, but eventually an HR practitioner responded.

The answer: the Fire Department was required to accommodate John by allowing him to return to duty in the Fire Station and to work there performing whatever duties he was able to complete.  If they did not comply, Fire Department management could be facing an enforced leave action that they couldn’t win.

That advice is so wrong I hardly know where to begin.

Not a Qualified Disabled Person

John did indeed have a physical impairment that limited several major life activities such as lifting, reaching, working, etc.  But, there is no way he can be determined to be a qualified disabled person.  The definition of qualified disabled person is that the individual can perform the essential functions of the position with or without accommodation.  John could not perform firefighting and EMT functions without accommodation – and what accommodation could be given that would allow him to do so?

If John is not a qualified disabled person, then he is not entitled to accommodation.  So, the advice that the Department was required to accommodate John is not correct.  The EEOC ruled on a case just last year with similar facts.  In Marlin K. v. Department of the Navy, EEOC Appeal No. 0220140005 (2016), a Wastewater Treatment Plant Operator was injured in an off-duty car accident which left him with multiple injuries that precluded him from climbing ladders and stairs, walking to collect samples, and lifting more than ten pounds. Although the employee asserted that the agency could have accommodated him by assigning a coworker to perform the physical duties of his position that violated his medical restrictions, the EEOC found that the agency was not required to remove any of the essential duties of the position as a reasonable accommodation.

The “Light Duty” Position is not a Real Job

If John could have been assigned as a Dispatcher or Inspector then he could have performed duties in a recognized position, but as mentioned earlier, there were none of those slots available when John tried to return to duty.  To have John come in and “do whatever he could do” doesn’t make sense.  I suppose he could fill out paperwork and check tags on equipment, but there wouldn’t be many Firefighter tasks that he could do.  It is at best make work, and might comprise a few hours of the day, but certainly not a full shift.

Someone Else was Being Paid to do John’s Job

Remember, there must be X number of qualified Firefighters on duty at any time.  Even though the accommodation required that John be on duty and paid, someone else had to perform the demands of his Firefighter position since he is not physically qualified to do so.  Thus, someone else was brought in, likely on overtime, to perform John’s duties.  I don’t know of any EEOC decision anywhere that requires an employer to pay two people to do one job.

How Could this be Enforced Leave?

We started with some basic facts about John.  Because of his injury, he is not qualified to perform the duties of his assigned position.  John knows this.  His doctor knows this.  Management knows this.  John wants to return to work because he has run out of leave.  An enforced leave action is putting someone on their leave without their consent.  If it is done by following due process for cause, the agency should be sustained.  It is when it is done without due process that agencies get in trouble.  In this case, there would be cause for a suspension – it’s an inability to perform case. This principle is not new.  See Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987).

The Cost of the Bad Advice

This organization covers a region of the United States.  When they got the response from their servicing HR office, it was transmitted in writing to all of their Fire Departments as the requirement for handling this type of situation.  From now on, every time there is an outside of work injury that disqualifies someone from their Firefighter job, they will repeat what they did here.  It is a costly mistake that could be repeated at multiple locations in the future.

I think sometimes in the HR world we forget what the real-world impacts are of the answers we provide.

What Should have been Done?

John should have been instructed to apply to the leave donor program.  Perhaps enough other employees would have recognized the dire situation John was facing and would have given him enough leave to get him through the months he needed to recover.  He could have been instructed to apply for FMLA, although in this case, it seems John was a good employee and no one in management was debating whether they would wait for him to come back to full duty and they were willing to give as much LWOP as he needed.

If John insisted that he should be accommodated, he should have been advised in writing explaining why he did not meet the conditions for accommodation.  If he tried to return to work, the agency could have suspended him for inability to perform, either a regular suspension if there was a set return to duty date or an indefinite one if the date was not known.

Unreasonable Accommodation

The requirement in disability cases is “reasonable” accommodation.  I hear too often of cases where the accommodations are unreasonable – like this one.  I don’t know if practitioners don’t know that not everything can be accommodated or that they are so afraid of a finding of discrimination that they advise steps beyond what management’s burden should be, but we owe it to those to whom we provide advice and guidance to do better than this. Haga@FELTG.com