Use Tried and True Principles to Meet Needs of Episodic Impairments

, ,

By Frank Ferreri, November 13, 2023

When the Americans with Disabilities Act Amendments Act and its implementing regulations, which apply to Federal employers via Section 504 of the Rehabilitation Act, took effect in the late ’00s and early ’10s, a big piece of the new legislation was its explicit extension to cover intermittent, episodic impairments.

29 CFR 1630.2(j)(1)(vii) directs that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Yet, as in the case of Dovie W. v. Department of the Army, EEOC App. No. 2022001188 (Sept. 7, 2023) shows, while it’s not always clear to employers what is required to accommodate an employee whose impairment is subject to flare-ups, the process doesn’t differ much from other reasonable accommodation requests.

Facts of the Case

In Dovie W. the complainant, a Material Handler for the Army had on-and-off “gastrointestinal issues” and migraines, for which she sought the accommodations of:

  1. Use of a chair
  2. Lifting restrictions
  3. Permanent reassignment to the Defense Reutilization and Marketing Office

When the complainant got a migraine during work, she would take additional breaks, inject medication, and sit down for 30 minutes while the medication took effect. The GI flare-ups occurred several times per day, and symptoms included dizziness and nausea. The complainant’s conditions could be triggered or exacerbated by stress.

After investigating, the agency provided the complainant with a copy of the report of the investigation and notice of her right to request a Final Agency Decision (FAD) or a hearing before an EEOC Administrative Judge (AJ). She eventually opted for a FAD, which the agency issued, finding that she failed to establish discrimination.

The complainant appealed, and the EEOC vacated the FAD, so the agency issued another FAD that also concluded the complainant failed to establish discrimination, prompting another appeal to the EEOC, the subject of the case at issue here.

EEOC’s Analysis

Under 29 CFR 1630.2(o) and 29 CFR 1630.2(p), an agency must make reasonable accommodations for the known physical and mental limitations of a qualified individual with a disability unless it can show that an accommodation would cause an undue hardship. As defined in a 2002 EEOC enforcement guidance, a “reasonable accommodation” is an adjustment at work for a reason related to a medical condition. The commission addressed the complainant’s three requests separately, as follows:

Use of a chair: The complainant asked for a chair and was provided with a barstool. EEOC determined that she received a reasonable accommodation in the eyes of the law, even if it wasn’t her accommodation of choice.

“Complainant was not denied a reasonable accommodation,” as even her appellate brief indicated that she “was requesting something to sit on as her accommodation and would have been fine with a barstool,” the EEOC explained.

How did it end up being a stool instead of a chair, anyway?

“Management and coworker testimony reflects that barstools were available at the workstations where Complainant was assigned, and that Complainant frequently sat on a barstool while she worked,” the commission wrote.

Lifting restriction: The complainant ran into more difficulties on the issue of lifting restrictions. She said she could lift up to 45 pounds without assistance, but her FMLA paperwork said she topped out at 15 pounds.

The crux of her failure-to-accommodate charge was that her supervisor denied her request by reassigning her to a role she didn’t want.

The EEOC noted that the complainant’s “difficulties lifting were obvious, as multiple witnesses [testified] that she regularly asked for assistance lifting items that were under 45 pounds,” the EEOC wrote. “For example, Supervisor claimed that most of the things she requested help lifting ‘weighed about as much as an average trash bag.’”

What ultimately halted the complainant’s claim regarding lifting restrictions is that her needs on the job were met.

“Significantly, Complainant does not allege that once she was moved, she was denied assistance or that the coworkers assisting her at other lines did not provide an effective accommodation,” the EEOC wrote.

Permanent assignment to DRMO: Although the complainant expressed displeasure at being reassigned from DRMO, she did not provide evidence that she notified management she wanted to remain in DRMO as a reasonable accommodation. Additionally, the EEOC noted the complainant did not make clear that she preferred the DRMO assignment due to her medical condition, since placement there was not “obvious or referenced” in her FMLA paperwork. Instead, the agency provided her with an accommodation consistent with the FMLA documents by permitting her to take breaks and sit down as needed.

“Complainant does not dispute that she was provided with a stool to sit on and assistance lifting at the three lines where she was reassigned, nor has she argued that these accommodations were not effective,” the EEOC reasoned. Thus, the EEOC affirmed the agency’s final decision dismissing the complaint. So, what’s the lesson here?

The agency didn’t get tripped up by the episodic nature of the impairment. Instead, it was able to show the EEOC:

  1. It engaged in a good-faith interactive process by working with information the complainant provided the agency, to come up with accommodations.
  2. It remembered an accommodation doesn’t have to be what the employee prefers, to be effective.
  3. It focused on essential functions. The EEOC did not expect the agency to change the essential functions of the complainant’s job by reassigning her to a line she preferred.

The following are examples of common episodic impairments, but these aren’t the only ones:

  1. Epilepsy
  2. Multiple sclerosis
  3. Cancer
  4. Hypertension
  5. Diabetes
  6. Asthma
  7. Major depressive disorder
  8. Bipolar disorder
  9. Schizophrenia

It’s also worth emphasizing that “episodic” can include large gaps of time between flare-ups. As anyone who has battled cancer or witnessed a loved one do so knows, that disease has a nasty habit of coming in and out of remission without regard to timelines or schedules, sometimes many years apart. info@FELTG.com

Invisible Disabilities Require Same Focus as Those You Can See

, ,

By Frank Ferreri, October 17, 2023

Although the Rehabilitation Act just turned 50, and the ADA is in its 30-something stage of life, employers – Federal and otherwise – continue to struggle with accommodations, particularly for employees whose disabilities aren’t visible.

A couple of weeks back, Fortune ran a story reporting that only 41 percent of neurodivergent employees said they received a workplace accommodation, with another 6.5 percent saying they were denied accommodations after requesting them.

In the context of Federal employment, the recent case of Harp v. Garland, 2023 WL 6380019 (W.D. Okla. September 29, 2023), provides an example of an agency failing to follow the law on accommodating an employee with an invisible disability.

According to a Department of Justice employee, the agency violated Section 501 of the Rehabilitation Act when it denied her request for a reasonable accommodation.

The employee alleged she asked the agency for two hours off work each week to attend therapy for her mental health condition. In response, the agency contended that the employee was able to perform the essential functions of her job without an accommodation.

At trial, the jury returned a verdict in the employee’s favor and awarded her compensatory damages of $250,000.

The DOJ entered a Post-Trial Motion for Judgment as a Matter of Law (Note: Under the Federal Rules of Civil Procedure, a party can file this kind of motion within 28 days after entry of judgment, and a court may: 1) allow judgment on the verdict; 2) order a new trial; or 3) direct the entry of judgment as a matter of law.)

To show that an agency came up short in its accommodation responsibilities under the Rehab Act, an employee must show:

  • She had a disability.
  • She was an otherwise qualified individual.
  • She requested a plausibly reasonable accommodation from the agency for her disability.
  • The agency failed to provide her with her requested accommodation or any other reasonable accommodation.

Although it noted the employee performed her job duties “adequately” immediately following the denial of her request for an accommodation, in upholding the trial court’s ruling in the employee’s favor, the District Court highlighted that:

  • The employee testified that in the absence of her treatment, her mental state deteriorated to the point that she was unable to work.
  • The employee testified that she believed the denial of her requests to attend her counseling sessions caused her to be unable to work and that, if she had been able to continue her treatment, her mental condition would have improved.

“Viewing this evidence in the light most favorable to [the employee,] a reasonable jury could have concluded that allowing [the employee] to take leave to attend counseling sessions was an accommodation that would have enabled [the employee] to perform the essential functions of her job,” the District Court wrote.

So, what can an agency learn from a case like this? It’s no secret there has been a mental health crisis in workplaces across the country for a while and that since the pandemic, the numbers have shown it’s not going away anytime soon.

Rather than end up in court or dealing with the EEOC, a better strategy might be to hone in on the tips FELTG Training Director Dan Gephart offered in the thick of the pandemic:

  • Develop clear expectations and agreed upon solutions to meet the goals and expectations of the job.
  • Communicate in a clear and concise manner, especially the policies and procedures that may impact their performance.
  • Provide respectful, but direct feedback. Also, ask the employee how they prefer to receive the feedback.
  • Avoid judgments or assumptions.
  • Avoid using language that promotes stigma.

Also, as this case illustrates, just because the employee can get a job done “adequately” doesn’t end the story.

The employee’s condition deteriorated without the accommodation, something that most employers would be sensitive to regarding a visible, physical impairment.

It sounds basic, but it’s worth remembering that the law doesn’t make a difference between physical or mental disabilities when it comes to employers’ accommodation duties.

If an employee needs time off to attend mental health counseling sessions, there’s a good case that it will be a request for reasonable accommodation under the Rehabilitation Act, and an agency would make a smart bet to treat it as such. Info@FELTG.com

When Emotional Stress Can (and Can’t) Support a Workers Comp Claim, Part 2

, ,

By Frank Ferreri, September 11, 2023

Just how much stress does it take to support a workers’ compensation claim? That’s a question we started to answer last month by breaking down recent cases that address when stress turns into an occupational disease for Federal workers, and when it doesn’t.

This month, we look at a few more cases.

S.G. and Department of Labor, Occupational Safety & Health Administration, No. 22-0495 (ECAB November 4, 2022)

Alleged injury: A 44-year-old safety and occupational health inspector alleged he developed anxiety, depression, stress, and post-traumatic stress disorder after being accused of creating a hostile work environment. OWCP denied his claim, noting the allegations were not factually substantiated.

Holding:  ECAB remanded the case to OWCP, finding that while the inspector provided a detailed response to OWCP’s development letter, along with supporting documentation, no response was received from the employing establishment.

“Once OWCP undertakes to develop the evidence, it has the responsibility to do so in a proper manner, particularly when such evidence is of the character normally obtained from the employing establishment or other government source,” ECAB wrote. “It shall request that the employing establishment provide a detailed statement and relevant evidence and/or argument regarding his allegations.”

C.D. and U.S. Postal Service, No. 20-1445 (ECAB October 3, 2022)

Alleged injury: A 55-year-old electronic technician filed an occupational disease claim, alleging he developed hypertension, anxiety, and stress due to factors of his Federal employment. He reported that his job could be dangerous due to the involvement of moving machine parts and that he had to keep up with an increasing workload due to other mechanics leaving his work facility. He also reported he had started to fear dying by being “sucked into” a machine and that he had experienced a racing heartbeat. OWCP denied the claim.

Holding: ECAB remanded the case for further development because, after the employer did not respond to its requests, OWCP did not make any further attempt to obtain comments from a knowledgeable supervisor regarding the accuracy of the technician’s allegations, the technician’s position description, and information regarding whether there were staffing shortages that affected the technician’s workload or extra demands for any reason.

P.T. and Department of Veterans Affairs, N0. 20-0825 (ECAB September 23, 2022)

Alleged injury: A 50-year-old licensed practical nurse alleged that he sustained post-traumatic stress disorder, anxiety, panic attacks, nightmares, and insomnia related to work. Allegedly, the nurse was treated differently due to his sexual orientation, given disciplinary counseling based on hearsay, was sworn at, called a “drama queen,” shoved, stalked, had $6,000 removed from his bank account, had a fake Facebook account created in his name with damaging information, and had his automobile vandalized. OWCP denied the claim, finding the evidence insufficient to establish compensable factors of employment.

Holding: ECAB agreed with OWCP, noting the nurse’s allegations involved administrative actions involving his supervisors. But what about the alleged harassment the nurse faced at work? ECAB found the evidence too thin.

“The employing establishment investigated his allegations in this regard and found that the investigation did not substantiate a hostile work environment,” ECAB wrote.

“[The nurse] has not established with corroborating evidence that any specific threat was made against him and has not alleged or established that management ignored or tolerated any alleged threats or that it failed to take preventative action.”

M.V. and Department of the Treasury, Internal Revenue Service, No. 20-0397 (ECAB September 8, 2022)

Alleged injury: A 38-year-old IRS agent alleged she developed fear, anxiety, insomnia, panic attacks and post-traumatic stress disorder after being assaulted by a taxpayer while in the performance of duty. The attack caused her to have flashbacks.

During the incident, the agent, who was seven months pregnant at the time, had a package thrown at her, and it struck her arm. Then, her manager ordered her to photocopy the contents of the package, which took 45 minutes. Following the incident, the agent was hospitalized due to preterm labor and delivered the baby prematurely.

OWCP denied the agent’s claim due to deficiencies in her factual and medical evidence.

Holding: ECAB sent the case back to OWCP, finding that more evidence was needed all around. Although the board found that the agent did not establish that management put her in an unsafe position, it also determined that OWCP failed to sufficiently develop the evidence regarding whether she was assaulted at work while in the performance of duty, particularly since there may have been video evidence of the encounter, and no such evidence was disclosed.

T.H. and U.S. Postal Service, No. 22-0658 (ECAB September 1, 2022)

Alleged injury: A 55-year-old city carrier filed a claim for anxiety, depression, headaches, chest wall strain, and post-traumatic stress disorder while in the performance of duty. She indicated the postmaster called her into his office, swore at her, and jumped out of the chair as if he was going to hit her. During an incident in which the carrier complained about employee who “don’t do s***,” the postmaster allegedly responded, “You don’t do s***,” and an argument ensued. In another incident, the postmaster alleged yelled at the carrier, “You haven’t done s***,” and “You don’t do a f***ing thing, you don’t do s***; what the f*** do you do?” OWCP denied the carrier’s claim, finding she had not established a compensable factor of employment as causing or contributing to her diagnosed emotional condition.

Holding: ECAB sent the case back to OWCP because the carrier provided “reliable and probative” evidence in the form of multiple witness statements with respect to her allegations of a hostile work environment, harassment, and abuse, specifically the postmaster’s yelling and swearing at her.

As these cases and ECAB precedent show, where the disability results from an employee’s emotional reaction to her regular or specially assigned duties or to a requirement imposed by the employment, the disability comes within the coverage of FECA. On the other hand, the disability is not covered where it results from factors such as an employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a particular environment or to hold a particular position.

What makes the difference is the evidence, and ECAB tends to rely on what a claimant puts forward to back up her allegations, which often come in the form of coworkers’ statements, and medical evidence. Info@FELTG.com

When Emotional Stress Can (and Can’t) Support a Workers Comp Claim

, ,

By Frank Ferreri, August 14, 2023

Unless you’re one of a few lucky workers, chances are that, at times, work brings a little stress into your life.

While some workplace angst and frustration is a normal part of life, there are times when it becomes so severe that, under the Federal Employees’ Compensation Act, emotional stress constitutes a compensable injury.

Just how much stress does it take to support a workers’ compensation claim? To establish an emotional condition in the performance of duty, a claimant must submit:

  • Factual evidence identifying an employment factor or incident alleged to have caused or contributed to her claimed emotional condition.
  • Medical evidence establishing that she has a diagnosed emotional or psychiatric disorder.
  • Rationalized medical opinion evidence establishing that the accepted compensable employment factors are causally related to the diagnosed emotional condition.

But, as the Employees’ Compensation Appeals Board explained in Lillian Cutler, 28 ECAB 125 (1976), when an injury or illness results from an employee’s feelings of job insecurity, fear of a reduction-in-force or her frustration from not being permitted to work in a particular environment, unhappiness with doing work, or frustration in not being given the work desired, or not holding a particular position, the injury or illness falls outside FECA’s coverage because it is found not to have arisen out of employment.

To get a sense of where ECAB currently stands on the issue, let’s break down some recent cases that address when stress turns into an occupational disease for Federal workers, and when it doesn’t.

C.R. and U.S. Postal Service, No. 21-0463 (ECAB April 28, 2023)

Alleged injury: A 46-year-old postmaster alleged that work stress caused him to develop kidney failure and suffer a minor stroke. The Office of Workers’ Compensation Programs denied the claim, finding the evidence was insufficient to establish a compensable employment factor.

Holding: ECAB sent the case back to OWCP, finding the postmaster established several employment factors, including:

  • Addressing problems with hiring and maintaining adequate staff.
  • Removing equipment from workspaces.
  • Securing adequate areas to carry out work functions.
  • Managing paperwork for posting and cutting mail delivery routes.
  • Keeping workspaces in safe, clean, and comfortable physical condition.
  • Addressing high work volume and deadlines, particularly with regard to handling Amazon mail.

However, ECAB found that to succeed on remand, the postmaster would need to submit rationalized medical evidence by a qualified physician and/or clinical psychologist establishing that he had a diagnosed condition causally related to an accepted compensable employment factor.

J.H. and Department of Homeland Security, No. 22-1086 (ECAB April 17, 2023)

Alleged injury: A 35-year-old law enforcement agent alleged he developed anxiety and stress due to a significant amount of physical and emotional stress within the work environment, which caused him to seek treatment. OWCP denied the claim, finding the agent had not established any compensable employment factors.

Holding: ECAB found OWCP improperly denied the agent’s request for reconsideration because he submitted evidence that:

  • Management placed him in AWOL status even though he had previously apprised them of his absence.
  • A supervisor admonished him but not others for addressing her by her first name.
  • Management denied his request for a change in shift to facilitate his training.
  • He was required to furnish medical documentation for all of his medical appointments when his coworkers were not required to do so.

ECAB remanded the case to OWCP.

B.T. and Department of Defense, Defense Commissary Agency, No. 20-1627 (ECAB January 11, 2023)

Alleged injury: A 32-year-old sales store checker, who was diagnosed with service-connected post-traumatic stress disorder, alleged she experienced undue stress and anxiety due to factors of her employment, related to, among other things, constant badgering, schedule changes, pettiness, micromanagement, and unprofessionalism. OWCP denied the claim, finding insufficient evidence that the checker’s medical condition arose during the course of employment and within the scope of compensable work factors.

Holding: The checker did not establish an emotional condition in the performance of duty because she did not submit evidence supporting her allegation she was overworked. Additionally, the checker’s allegations regarding the assignment of work and modification of work schedule, denial of her request for reasonable accommodation, termination of her federal service, the handling of leave requests and attendance matters, disciplinary matters, requests for medical documentation, and the filing of grievances and EEO complaints related to administrative or personnel management actions, and mere dislike or disagreement with certain supervisory actions would not be compensable absent error or abuse on the part of the supervisor.

Similarly, ECAB found that the checker’s allegations of harassment were “mere perceptions” and not compensable under FECA.

W.J. and U.S. Postal Service, No. 20-1226 (ECAB January 6, 2023)

Alleged injury: A 57-year-old letter carrier alleged he developed anxiety, depression, and a sleep disorder due to factors of his Federal employment. He asserted that multiple managerial changes created a hostile workplace where he encountered disparaging remarks and constant humiliation and harassment over work methods. OWCP denied the claim.

Holding:  The carrier established overwork as a compensable factor of employment based on:

  • Multiple instances where management confronted him, questioned his time estimates, and the validity of his employment injury and instructed him to ignore his work restrictions to complete his route for that day.
  • Management would complain about not having enough coverage and ask the carrier complete his work without assistance.
  • The carrier was asked on multiple occasions to work multiple routes due to an understaffing issue.
  • The carrier worked auxiliary time for various reasons despite multiple Form CA-17s suggesting that he only work for eight hours.

The carrier also established compensable employment factors with respect to allegations of harassment based partly on an incident in which the carrier’s supervisor stressed him out to the point where he had an anxiety attack and was unable to complete his work for the day.

ECAB remanded the case to OWCP.

P.G. and U.S. Postal Service, No. 22-0259 (ECAB January 5, 2023)

Alleged injury: A 51-year-old rural carrier alleged that she developed post-traumatic stress order due to factors of her federal employment, including ongoing harassment by a coworker that was alleged to have included obscene hand gestures, getting in the carrier’s face and saying something that could not be understood, and approaching the carrier and saying, “When I talked to you about the hen house and you got me in trouble … what I was talking about were chickens.” OWCP denied the claim.

Holding: The carrier established a compensable employment factor, and OWCP did not review the medical evidence. “Verbal altercations and difficult relationships with coworkers, when sufficiently detailed and supported by the record, may constitute compensable factors of employment,” ECAB wrote in remanding the case to OWCP.

Next month, we’ll look at five more cases. Info@FELTG.com

 

New Processing Rules for COVID-19 Workers’ Comp Claims Take Effect

, ,

By Frank Ferreri, February 14, 2023

As the old year came to a close, the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) issued a Federal Employees’ Compensation Act (FECA) Bulletin (No. 23-02, to be exact) announcing changes that would be coming related to COVID-19 claims in the new year.

Well, it’s now February, and those changes took effect Jan. 27. So, what’s the new setup? The following chart breaks it down.

Topics Explanations
COVID-19 diagnoses prior to Jan. 27 A COVID-19 positive test result that occurred prior to Jan. 27 triggers application of the steps in the American Rescue Plan Act (ARPA), which purport to make it easier for Federal employees to file and receive benefits for COVID-related workers’ compensation claims.

For post-Jan. 27 positive results, the five basic elements set forth in 20 CFR §10.115, which apply to Federal workers’ compensation claims generally, govern.
What evidence is needed to establish a claim under 20 CFR §10.115? 1. The claim must be filed within FECA’s time limits.

2. The injured person must have been, at the time of injury, an employee of the United States as defined in 5 U.S.C. § 8101.

3. The claimant must provide evidence:

  • Of a diagnosis of COVID-19, and
  • That establishes they actually experienced the events or employment factors alleged to have occurred.

4. The alleged events or employment factors must occur while the employee was in the performance of duty.

5. The COVID-19 must be found by a physician to be causally related to the established events or employment factors within the employee’s Federal employment. (Note: It’s not enough that the condition manifests itself during a period of Federal employment, nor is it enough that the claimant believes that factors of employment caused or aggravated the condition).
What form should be used? Claims for COVID-19 diagnosed after Jan. 27 should generally be filed on the CA-2. This is because in most cases, there is no clear, identifiable incident or incidents over a single day or work shift to which an injured worker can specifically attribute a COVID-19 diagnosis.

Now that Congress intends to end specialized treatment of COVID-19 claims, the coronavirus will receive the same treatment as other airborne infectious diseases “where the specific etiology is unclear.”
An exception allowing use of the CA-1 A CA-1 can be used if the event alleged to have caused the diagnosed COVID-19 is identifiable as to 1) time; and 2) place of occurrence. It must be a specific event or incident or series of events or incidents during a single day or work shift to warrant CA-1 usage.
The role of claims examiners A claims examiner (CE) must make a factual determination by reviewing the evidence to decide whether the claimant actually experienced the specific events or employment factors claimed on a CA-1 or CA-2.

A CE may credit statements made by the claimant regarding facts of which the claimant has direct knowledge.

OWCP provided two examples:

1. If the claimant alleges that they were in close contact to 10 individuals at work, which the claimant believes resulted in the claimant getting COVID-19, OWCP may accept as fact that the claimant was in close contact to 10 individuals at work.

2. If the claimant alleges their COVID-19 is the result of “sitting next to an individual that had tested positive for COVID-19,” OWCP may accept as fact that the claimant sat next to the individual but would require the claimant to provide evidence in support of the allegation that the individual sitting next to them was COVID-19 positive.
Report required A rationalized medical report establishing a causal link between a diagnosis of COVID-19 and factors of Federal employment is required for all claims of COVID-19 diagnosed after Jan. 27.
Medical documentation One holdover from the pandemic era is the medical evidence required to establish a COVID-19 diagnosis, which is any of the following:

1. A positive polymerase chain reaction (PCR) or antigen COVID-19 test result.

2. A positive antibody COVID-19 test result combined with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician.

3. A COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result could not be obtained (this could apply when a claimant has a false negative test).
Self-administered COVID-19 tests Although at-home over-the-counter test kits are easy to use and much easier to find than they were not too long ago, they are insufficient to establish a diagnosis of COVID-19 under FECA. Why? There’s no way for FECA claims staff to affirmatively establish the date and time that the sample was collected or that the sample collected was from the injured Federal employee making the claim.
Exception for self-administered COVID-19 tests If the administration of a self-test was monitored by a medical professional and the results are verified through documentation submitted by that professional, then an at-home test could be used in support of a claim.

OWCP’s treatment of COVID-19 reflects the stance of the Federal government (and probably broad segments of the general population) that the new normal is shifting from the pandemic phase to the endemic era. The long and short of it is that, for purposes of Federal workers’ compensation coverage, COVID-19 will receive treatment that is akin to other infections caught on the job. Info@FELTG.com

Can Agencies Drug Test Injured Workers?

, ,

By Frank Ferreri, November 15, 2022

Let’s say an employee who is going about her business on the job slips and falls, resulting in an injury for which she files a claim for workers’ compensation benefits. Someone at the agency thinks that it wasn’t work that caused the spill but the fact that she was under the influence of drugs at the time of the injury.

The agency, wanting to get the record straight, decides the employee needs to undergo drug testing. Can the agency do such a thing and what sort of considerations apply when an agency has made the call to test for drugs?

The following breaks down what Congress, the Office of Workers’ Compensation, and the Employee Compensation Appeals Board (ECAB) have had to say about drug testing for workers injured on the job.

First off, while it isn’t the law it should be pointed out that Executive Order 12564, signed into effect by President Reagan in 1986, maintains that Federal employees are required to refrain from the use of illegal drugs. The EO charges agencies with establishing programs for drug testing. So, Federal employees shouldn’t be using drugs in the first place, and agencies have the authority to take action against those who do.

In the specific context of workers’ compensation, under 5 USC Sec. 8102(a), Congress has declared that agencies are not required to pay workers’ compensation benefits for a disability or death that is proximately caused by the intoxication of the employee. Unlike Reagan’s EO, it’s not just illegal drugs that are a problem. That’s because on the regulatory side of things, in 20 CFR 10.220, OWCP clarified by implication that the “intoxication” referred to under the statute is “intoxication by alcohol or illegal drugs.”

In 2009, OWCP released Publication CA-810, which, among many other things, spelled out that an agency defending against compensating an employee must present a record that establishes the extent to which the employee was intoxicated at the time of the injury and the particular manner in which the intoxication caused the injury.

So, while the work doesn’t stop by proving that an employee was under the influence of illegal drugs or alcohol, it is a necessary first step to controverting a claim.

The 2009 publication emphasized that an agency looking to proximately link an injury to an employee’s intoxication does not have “any additional authority to test employees for drug use beyond that which may exist under other statutes or regulations.”

An agency claiming the employee’s intoxication as a defense should, per the FECA Procedure Manual, obtain a statement from the physician and hospital where the employee was examined following the injury that describes the extent to which the employee was intoxicated and the manner in which the intoxication affected the employee’s activities. As part of this, the manual directs agencies to obtain “the results of any tests made by the physician or hospital to determine the extent of intoxication.”

Contours of the law

To see how the law plays out in the real world, it’s necessary to look at ECAB decisions that have weighed in on the issues of injured employees, their intoxication, and agency-employed drug testing.

Here’s a look at a few cases for insight on those subjects:

N.P. and U.S. Postal Service, 2011 WL 4499581, No. 10-952 (ECAB July 26, 2011)

What happened? A letter carrier alleged that she injured the left side of her head, broke her left elbow, and scraped her left knee when she fell after making a delivery.

The agency’s argument. The agency controverted the claim, asserting that she was intoxicated at the time of the injury due to her consumption of narcotics and, therefore, did not sustain an injury in the performance of duty, which is a required showing for an employee to obtain benefits.

The drug testing issue. Because the carrier appeared to be intoxicated – allegedly she was slurring her speech and falling in and out of consciousness and another patient expressed concern that the carrier had been driving — the hospital where she received treatment for her injuries administered the test, which came back positive for opiates. Further analysis revealed the presence of “an extremely high concentration of morphine and a significantly elevated level of oxycodone.”

How the ECAB ruled. According to the board, the evidence, including the drug test, wasn’t “clear” that the carrier was intoxicated at the time of her fall and did not establish that intoxication was the proximate cause of the accident. “The evidence establishes only the possibility that [the carrier] was intoxicated … at the time of injury.”

T.F. and U.S. Postal Service, 2008 WL 5467738, No. 08-1256 (ECAB Nov. 12, 2008)

What happened? A mail carrier alleged that she experienced an injury while driving for work when she hit an embankment of gravel, which caused the vehicle to hydroplane and led to a spinal injury.

The agency’s argument. Drug testing came back positive for marijuana and opiates, the agency denied the carrier’s claim.

The drug testing issue. The test was administered two full days after the accident, and the report indicated that the tests were “all … unconfirmed” and noted that no chain of custody was maintained on the specimens received.

How the ECAB ruled. The agency didn’t meet its burden to establish the affirmative defense of intoxication because it did not provide any discussion of why intoxication was the proximate cause of the accident. Instead, the evidence established that “at the time of her injury [the carrier] was delivering mail on her usual mail delivery route.” Accordingly, the carrier sustained an injury in the performance of duty.

In the Matter of Elaine Hegstrom and U.S. Postal Service, 2000 WL 1285967, 51 E.C.A.B. 539 (ECAB June 5, 2000)

 What happened? A USPS employee died after sustaining a broken neck in a motor vehicle accident that occurred while he was delivering mail. Before he died, the employee was cited for driving under the influence. 

The agency’s argument. The agency invoked the affirmative defense of intoxication, claiming that it removed the employee from the performance of duty.

The drug testing issue. Upon arrival at the hospital after the accident, the employee’s blood alcohol level was tested at nearly twice the legal intoxication limit in the state where the accident occurred.

How the ECAB ruled. Based on the blood alcohol level and a doctor’s opinion, the ECAB held that the employee’s intoxication removed him from the performance of duty as it was the proximate cause of his injury.

B.B. and Department of Justice, Bureau of Prisons, 2015 WL 5306843, No. 14-2000 (ECAB July 9, 2015) 

What happened? The widow of a Bureau of Prisons correctional officer filed a claim for survivor’s benefits, alleging that the officer was “murdered [by] gunshot” on the job.

The agency’s argument. In response, the agency alleged that the officer died in a hotel as the result of a gunshot wound inflicted by a fellow correctional officer in activities that were not job-related, part of which involved illegal drug use.

The drug testing issue. A toxicology report indicated that the officer had Methlenedioxypyrovalerone – better known as “bath salts” – in his system. The report also indicated the presence of Lidocaine, which is used as a “cutting” agent for drugs of abuse.

How the ECAB ruled. According to the board, “the employee’s ingestion of mind-altering drugs would not be reasonably expected by the employing establishment as a travel-duty activity, and it constituted a deviation from the normal incidents of his employment such that he was removed from the performance of duty.” Thus, the widow was not entitled to survivor’s benefits.

The takeaway

What does it all mean?

Based on statutes, regulations, agency decisions, and guidance, agencies should get the results of drug testing in hand when faced with a claim for workers’ compensation benefits, particularly if something like a doctor’s concern or a coworker’s observation raises the suspicion of possible drug or alcohol use on the job.

However, the legal key to asserting a defense based on an employee’s substance use is that intoxication must be the proximate cause of the injury for OWCP to deny benefits to a worker. Thus, the agency must provide evidence showing that the employee’s illegal drug or alcohol use removed her from the performance of duty.

It can be a tough case because, in certain circumstances, the ECAB might say that even if the employee was intoxicated, the injury would have happened anyway, and so would be compensable. info@FELTG.com

Latest OWCP COVID-19 Guidance Tackles Continuation of Pay

, ,

By Frank Ferreri, March 15, 2022

As with just about everything employment-related, COVID-19 continues to have a shifting impact on the federal workers’ compensation landscape, with the Office of Workers’ Compensation Programs pivoting in its guidance to meet the demands of a workforce entering its third year of pandemic-related challenges.

In its latest recommendations, issued in mid-February, OWCP focused on continuation of pay and how employees must demonstrate that they had COVID-19 to earn COP. The following chart highlights the agency’s latest updates for when employees file COVID-related claims under the Federal Employees Compensation Act.

Topic OWCP guidance
Establishing a COVID-19 claim To show that she has COVID-19 for purposes of receiving COP, the employee:

1.     Must be diagnosed with COVID-19 via a positive test result – excluding home tests – or a medical professional; and

2.     Within 21 days of diagnosis, must have carried out duties that required contact with patients, members of the public, or coworkers.
Continuation of pay COP is payable if a federal employee must miss time from for isolation after a positive COVID-19 test only if:

1.     The employee can demonstrate she has COVID-19 via a positive test result or a medical professional.

2.     The employee files a CA-1 within 30 days of the last exposure to COVID-19 at work.
Days of COP for isolation for COVID-19 Although OWCP pointed out that the latest CDC recommendations indicate that five days of isolation following a positive test is enough, OWCP will not intervene until the 10-day regulatory timeframe of 20 CFR 10.222 has passed.
Filing a FECA claim without demonstrating positive COVID-19 status If an employee files a FECA claim without evidence of a COVID-19 positive test result or a report from a medical professional within 10 days, OWCP will formally adjudicate the claim and make a determination of COP. If it turns out that OWCP denies the claim, the agency can recover any COP previously paid to the employee.
Employees who don’t have COVID-19 but must quarantine due to exposure OWCP cannot accept a workers’ compensation claim based solely on quarantine or exposure, and COP is not payable solely for quarantine or exposure.
Safety concerns Although COP is not available for quarantine or exposure only, OWCP advised employees and agencies to consider possible safety leave, which can include paid leave, for quarantining purposes.

So, what’s the takeaway? When it comes to OWCP’s current stance regarding workers’ compensation and COVID-19, COP will be available – but only if employees have a positive test that’s not a home test or a report from their doctor indicating they are COVID-19-positive. info@FELTG.com

OWCP Covers ARPA Steps, Definitions for COVID-19 Workers’ Comp Claims

, ,

By Frank Ferreri, May 19, 2021

With the American Rescue Plan Act (ARPA) looking to make it easier for Federal employees diagnosed with COVID-19 to file workers’ compensation claims, the Office of Workers’ Compensation Programs has put together updated guidance for processing coronavirus-related claims.

In FECA Bulletin No. 21-09, which supersedes Bulletins No. 20-05 and No. 21-01, OWCP addressed the processing of pre- and post-ARPA claims as well as what counts as “exposure,” why a CA-1 is required, and how employees must establish a COVID-19 diagnosis. The following chart highlights OWCP’s latest guidance:

Workers’ Compensation Considerations OWCP Guidance
Previously accepted cases COVID-19 FECA claims that were accepted prior to March 12 are not impacted because coverage for benefits had already been accepted. Because these aren’t ARPA cases, they are not subject to that law’s limitation that no benefits may be paid after Sept. 30, 2030.
Previously denied cases OWCP’s FECA program will review all COVID-19 claims previously denied to determine if claims can now be accepted under ARPA. If so, the employee and agency will be notified that the case will be reopened.
Previously closed cases No action will be taken on cases that are already administratively closed. Any future actions will be taken in accordance with ARPA since the claim had not been formally accepted.
Form-filing process The Employees’ Compensation and Management Portal should be used to file new claims, and ECOMP has been updated.
Use of the CA-1 OWCP considers COVID-19 to be a traumatic injury per 20 CFR 10.5(ee) because it is contracted during a single workday or shift. The agency also considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the date of injury.
Codes All cases filed after March 11 for COVID-19 will use the following codes:

·       Nature of Injury – COVID-19 (T9).

·       Cause of Injury – Exposure to COVID-19 (9C).

·       Location of Injury – COVID-19 (ZZ).
Employees covered The claims examiner should determine whether the employee is an employee under 5 USC 8101(1) and whether she was diagnosed with COVID-19 between Jan. 27, 2020, and Jan. 27, 2023. If the employee’s diagnosis does not fall within that date range, routine FECA case-handling procedures apply.
COVID-19 diagnosis To establish a COVID-19 diagnosis, an employee or survivor should submit one of the following:

·       A positive polymerase chain reaction COVID-19 test result.

·       A positive antibody or antigen COVID-19 test result together with contemporaneous medical evidence that the employee had documented symptoms of or was treated for COVID-19 by a physician.

·       If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.
Covered exposure An employee is deemed to have had exposure if, during the covered exposure period, she carries out one of the following:

·       Duties that require a physical interaction with at least one other person in the course of employment duties.

·       Duties that otherwise include a risk of exposure to COVID-19.
Covered exposure period The evidence should establish manifestation of COVID-19 symptoms or a positive test result within 21 days of the covered exposure.
Teleworking employees An employee who is exclusively teleworking during a covered exposure period is not considered a “covered employee.” In that case, routine FECA case-handling procedures apply.
Death claims In death cases, the FECA program will ask for evidence and records to support that the death was the result of COVID-19 or that COVID-19 was a contributing cause of death.
CA-16 When an employee uses ECOMP, the agency will be prompted to provide a CA-16 if they do not substantively dispute the employee’s description of cause and nature of injury. Issuing the CA-16 will allow the employee to obtain the necessary test to confirm COVID-19 and receive medical treatment.

 

New ARPA Presumption Expands Federal Workers’ Comp Coverage

, ,

By Frank Ferreri, April 20, 2021

The one constant that has emerged in the COVID-19 era is that things will change, and such has been the case with Federal workers’ compensation coverage.

Early on in the pandemic, the Office of Workers’ Compensation Programs made it easier for certain federal employees to establish that their exposure to coronavirus was work-related without going through traditional requirements on producing evidence.

With the American Rescue Plan Act of 2021 now in effect, Congress has followed OWCP’s lead, and declared that a federal employee who is diagnosed with COVID-19 and carried out duties that required contact with patients, members of the public, or coworkers, or included a risk of exposure to the virus during a covered period of exposure prior to the diagnosis, is deemed to have an injury that is proximately caused by employment.

Under the law, employees who are “exclusively teleworking” don’t enjoy the presumption of coverage, and it’s up to the U.S. Department of Labor to specify what the “covered period of exposure” is.

In the meantime, OWCP has advised in guidance that federal employees should be aware that:

  • Any COVID-19 claim filed under the Federal Employees Compensation Act that was accepted for COVID-19 prior to March 12, 2021, is not impacted because coverage for benefits has already been extended.
  • Any COVID-19 claim filed under FECA that was denied or withdrawn prior to March 12, 2021, is eligible for review under the new eligibility requirements.
  • Any COVID-19 claim filed under FECA on or after March 12, 2021, will be reviewed solely under the new eligibility requirements.

OWCP explained in the guidance that if employees previously filed a COVID-19 claim under FECA that OWCP denied based on a lack of exposure or lack of medical evidence establishing a causal relationship between the job and the infection, they can expect to hear from OWCP by around the end of April.

For employees who have never filed a COVID-19 claim under FECA but believe they have contracted COVID-19 from federal employment, it’s necessary to file a CA-1 through the Employees’ Compensation Operations and Management Portal.

Employees who previously filed a COVID-19 claim under FECA that was accepted can expect no change and need not take further action. Info@feltg.com

Requiring Vaccinations? Follow EEOC Steps to Avoid Discrimination

, ,

By Frank Ferreri, January 11, 2021

Notable federal employees — like the National Institute of Health’s Anthony Fauci and Francis Collins – have rolled up their sleeves for the COVID-19 vaccine, signaling the start of another “new normal” sure to define 2021: workplace-required inoculations.

With agencies of all types looking to bring their workforces back together safely, a handle on the Equal Employment Opportunity Commission’s updated COVID-19 guidance will help federal employers stay on the right side of EEO laws when requiring vaccinations.

Here’s a look at how the EEOC views the Americans with Disability Act, Genetic Information Nondiscrimination Act, and Title VII in the vaccine era.

ADA

Under the ADA, which applies to agencies through the Rehabilitation Act, a vaccination itself is not a medical examination. However, pre-screening vaccinations may implicate the ADA’s provision on disability-related inquiries. Such inquiries may only be made if they are “job-related and consistent with business necessity.”

“Job-related and consistent with business necessity” in the vaccine context means that the agency has a reasonable belief, based on objective evidence, that an employee who doesn’t answer the questions and doesn’t receive a vaccination will pose a direct threat to the health or safety of herself or others.”

A “direct threat” is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

Making the case that a pandemic-causing virus is a direct threat to a workplace shouldn’t be too difficult in a time of lockdowns and social distancing.

However, some employees may have disability-related reasons for not receiving a vaccination. Agencies should conduct an individualized assessment to determine whether a direct threat exists, considering four factors: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.

The skinny: If there is a direct threat and no way possible to provide a reasonable accommodation that would eliminate or reduce the risk, agencies may exclude an employee from the workplace. That doesn’t mean they can automatically terminate an employee, though. Instead, given how many agencies pivoted their workforces to remote positions, telework may be an option for those unable to receive a COVID-19 vaccination due to a disability.

The EEOC advises using the interactive process to determine whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.

Title VII

Religion, pandemics, and vaccines don’t always go together, and once an agency has notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the agency must provide a reasonable accommodation unless it would pose an undue hardship.

An “undue hardship” involves more than a de minimis cost or burden on the employer.

The skinny: The best practice is to assume that the employee has a sincerely held religious belief in seeking a vaccination accommodation. However, if an agency has an objective basis for questioning the religious nature or sincerity of the belief, the EEOC notes that agencies can seek additional supporting information.

Similar to the disability context, with so much telework already happening in federal agencies, working remotely may be a natural accommodation for an employee who cannot receive a vaccine due to religious reasons.

GINA

Prior to 2020, “messenger ribonucleic acid” didn’t get much attention outside of labs and biology classrooms, but the “new normal” may soon bring history’s most anticipated mRNA technology to a workplace near you.

The Centers for Disease Control and Prevention reports that COVID-19 vaccines don’t interact with people’s genetic material, so requiring the vaccine, by itself, wouldn’t violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

But here’s the rub: Pre-vaccination medical screening questions may elicit information about employees’ genetic information if they include questions regarding the immune systems of family members.

The skinny: If pre-vaccination screening doesn’t include questions about genetic information, like family medical history, the agency doesn’t have to worry about GINA. If the screening does include such questions, the agency should consider requesting employees to show proof of vaccination from a third party, such as their doctors or pharmacies.

In that case, as a best practice, agencies should warn employees not to provide genetic information as part of the proof using the model language of 29 CFR 1635.8(b)(1)(i). Including this language will protect agencies from GINA charges as the law considers genetic information obtained after providing the warning “inadvertent.”

Pregnancy Discrimination Act

As an amendment to Title VII, the PDA should be on employers’ minds when vaccination requirements work their way into agency policy.

While the EEOC’s latest update didn’t specifically address pregnancy discrimination, the commission previously emphasized that “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”

Under the U.S. Supreme Court’s holding in Young v. United Parcel Service, 135 S. Ct. 1338 (2015), an employee can show pregnancy discrimination by presenting evidence that: 1) she sought an accommodation; 2) the agency didn’t accommodate her; and 3) the agency did accommodate others “similar in their ability or inability to work.”

In the Court’s reasoning, an employee can make her case “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”

The skinny: Per EEOC directions, agencies should make sure that supervisors, managers, and HR personnel know how to handle pregnancy-related accommodation requests to avoid disparate treatment in violation of Title VII.

Yet again, the case for telework will likely arise. If nonpregnant employees are offered the accommodation of working remotely, it would logically follow that a pregnant employee could potentially still do the job while teleworking. info@FELTG.com

[Editor’s note: Register now for EEO Challenges, COVID-19, and a Return to Workplace Normalcy, a half-day virtual training event on March 10.]