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:
- Use of a chair
- Lifting restrictions
- 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:
- It engaged in a good-faith interactive process by working with information the complainant provided the agency, to come up with accommodations.
- It remembered an accommodation doesn’t have to be what the employee prefers, to be effective.
- 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:
- Epilepsy
- Multiple sclerosis
- Cancer
- Hypertension
- Diabetes
- Asthma
- Major depressive disorder
- Bipolar disorder
- 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. [email protected]
