Three Costly Lessons on Reasonable Accommodation
By Deborah J. Hopkins, March 6, 2023
There are always two sides to a reasonable accommodation (RA) case: the agency’s side and the complainant’s side. While a lot of our training programs at FELTG focus on avoiding agency liability, there’s another aspect to this that’s important to mention, and that’s doing the right thing for the employee who requests accommodation. We see too many instances where an agency handles an RA request improperly, and it exacerbates the employee’s medical condition, causing further harm.
The goal should always be to process RA requests according to the law. One way to ensure that happens is to look at cases to see what agencies did correctly, and also cases where they could have handled requests better. Today I want to highlight three important lessons from fairly recent RA cases.
1. If an accommodation is working, don’t change it. Every now and then we see a scenario where an employee is on a long-term RA, and a new supervisor comes in and revokes the RA, thus causing problems for the complainant and the agency. Once such case involved a technical editor who suffered from irritable bowel syndrome. She was on 100 percent telework with a flexible schedule for several years. She had been performing her duties, preparing manuscripts and various administrative oversight functions, at an acceptable level throughout this time.
A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and she requested the RA be granted back to her. The agency refused and, among other things, claimed the complainant’s job was not telework eligible, despite the fact that she’d been performing the work from home for several years. As a result of the accommodation denial, the complainant stopped coming to work. The EEOC found that the agency failed to provide an RA. It ordered the agency to offer the complainant a retroactive reinstatement, with appropriate back pay and benefits, and to investigate the complainant’s claim for damages. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).
2. Don’t skip the interactive process. In this case, the complainant was a food inspector who developed asthma. The chemical sprays used to wash animal carcasses in his work area exacerbated his condition, so he provided a medical note to inform his agency of the issue. Rather than consider the medical note as an RA request, the agency considered the note as evidence the complainant could not work in his designated area and sent him home. The EEOC found this particular conclusion to be rational at the time.
From home, the complainant again requested an RA – specifically, the use of a certain type of respirator his physician recommended that would filter out the workplace chemicals that irritated his respiratory system. The agency denied this request, claiming “there is no evidence that demonstrates significant inhalation exposure to the employees at the establishment.” The complainant continued to make requests. After a few weeks, the agency informed him that he could use a different type of respirator than the one his doctor had ordered. However, this respirator did not filter out the chemicals that caused the complainant respiratory distress, so he again requested to use the respirator the physician recommended. He was denied because, according to the agency, it “would be an undue burden because it is a safety hazard while performing his animal slaughter duties as well as concerns with complying with OSHA’s regulatory requirements.”
EEOC noted that by requesting use of the respirator, the complainant requested the interactive process: “This informal, interactive process should be a problem-solving approach that includes: an analysis of the job to determine its essential functions; consultations with the complainant; an assessment of the effectiveness of potential accommodations; and consideration of the complainant’s preferences. 29 C.F.R. pt.1630, app. § 1630.9.”
The EEOC held the agency failed to engage in the interactive process because it did not “participate in this necessary exchange of information, which resulted in the improper denial of a reasonable accommodation.” The EEOC ordered the agency to consider the complainant’s request for compensatory damages. Tyson A. v. USDA, EEOC Appeal No. 2020000972 (Aug. 16, 2021).
3. After receiving sufficient medical documentation, don’t ask for more. The complainant in this case was injured at work. As a result, she required surgery and reasonable accommodations. She provided sufficient medical documentation to substantiate her FMLA and RA requests, but the supervisor still contacted the complainant’s medical provider without the complainant’s permission to make further inquiries about the complainant’s medical restrictions.
The supervisor was unable to explain why she needed additional medical documentation, so the EEOC found the agency committed a per se violation of the Rehabilitation Act by conducting an unlawful disability-related inquiry. EEOC remanded the case for a back pay award and a compensatory damages assessment. Eleni M. v. Army, EEOC Appeal N. 2020001903 (Sept. 7, 2021), request for recon. denied, EEOC Request No. 2021005193 (Feb. 22, 2022).
We’ll be addressing these issues and more during EEOC Law Week next week, on June 14 in Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, and as part of the updated Reasonable Accommodation in the Federal Workplace in 2023 webinar series, beginning July 20. Hopkins@FELTG.com