Employee is Responsible for Breakdown in Accommodation Process

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By Frank Ferreri, January 15, 2025

Quick facts:

  • An ATF employee sought accommodations for stress she experienced from work.
  • The agency offered her, and she accepted, a transfer from a GS-9 to a GS-7 position.
  • The court did not consider the transfer a “forced demotion” and found the agency met its Rehabilitation Act duties regarding the employee’s accommodations.

From time to time, FELTG newsletters contain reminders that “reasonable” accommodations don’t always imply “preferred” arrangements. Such was the case in Kingsolver v. Garland, No. 2:23-CV-58 (S.D. Ga. Dec. 30, 2024), which held an agency didn’t have to provide a lateral transfer for an employee with a disability where no such transfer was available and that a request for indefinite leave did not trigger a request for FMLA as an accommodation.

A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) employee had depression and cardiac arrhythmia. Due to increasing stress at work, she had an “uncontrollable” crying episode in her office. The employee’s supervisor advised her of ATF’s employee assistance program.

The employee took a two-week vacation, followed by a weeklong training. After she returned to the office, the employee asked for leave without pay (LWOP), a lateral transfer, or anything else to help her. The employee’s supervisor offered her “liberal use” of leave with a flexible schedule and explained the employee could take sick leave or annual paid leave. However, LWOP was not an option, and a lateral transfer was unavailable.

After the employee received the same options from a second-line supervisor, she submitted a letter from her doctor suggesting that her windowless office worsened her condition. In response, the agency moved her to an office with a window.

Eventually, the employee was given a transfer from her GS-9 position to a GS-7 role. After the transfer, the employee contacted the DOJ’s Equal Employment Opportunity staff to complain that the transfer was not a voluntary reassignment but instead a demotion that she was forced to take.

The employee brought action under the Rehabilitation Act, alleging disability discrimination because the agency failed to provide her with a reasonable accommodation.

What’s the law?

An agency unlawfully discriminates against an otherwise qualified person with a disability when it fails to provide a reasonable accommodation for the disability unless doing so would impose an undue hardship on the agency. The employee bears the burden of identifying an accommodation that would allow her to perform the essential functions of the job.

The court found a difference between coercing the employee into the GS-7 role and moving her into it to accommodate her. Looking to a Circuit Court case, Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), the court noted five factors to determine whether an employer forced an employment action through coercion or duress:

  1. Whether the employee was given some alternative to resignation or demotion.
  2. Whether the employee understood the nature of the choice she was given.
  3. Whether the employee was given a reasonable time in which to choose.
  4. Whether the employee was permitted to select the effective date of the resignation or demotion.
  5. Whether the employee had the advice of counsel.

The court noted that while the employee was given about 24 hours to make her decision and did not have the advice of counsel, her supervisors kept her apprised of vacancies for “months.” She was given the alternative to take annual leave liberally or stay in her current position. Thus, the court found no basis on which to find that the agency denied her a reasonable accommodation.

Reassignment to a vacant position can be a reasonable accommodation, the court noted, even if an employee with a disability is qualified for and capable of performing another existing position, the employer is not required to reassign the employee if there is no vacancy. The employer is also not required to create a new position, transfer another employee, or promote the employee. In this case, “reassignment to a GS-9 or higher position would have required [the agency] to create a new position, transfer another employee, or promote her to a GS-12.”

Indefinite leave or FMLA?

The court also explained that LWOP is not generally a reasonable accommodation. The employee alleged she was seeking FMLA leave when she made her request for leave without pay and that the agency had the “responsibility” of making her aware of her FMLA rights.

The court pointed out failure to notify an employee of FMLA rights is an FMLA interference claim — not a disability discrimination claim. Despite receiving training on the FMLA, the employee never formally put in for FMLA leave.

“Thus, no reasonable juror could find in [the employee’s] favor because this ‘breakdown’ in the reasonable accommodation process was attributable to [the employee], not the employer,” the court wrote.

What about telework?

The employee also alleged telework could have been a reasonable accommodation. The court rejected this argument as at odds with the employee’s argument that stress was the cause for her need for accommodations.

“Because [the employee] has not shown how teleworking would allow her to perform the essential functions of her job or how it would address the limitations of her disability, [the employee] has not met her burden of establishing that this particular accommodation is reasonable,” the court wrote.

The court granted the agency’s motion for summary judgment on the employee’s Rehabilitation Act claims.

As the court wrote, quoting Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997), “‘liability simply cannot arise’ for a failure to accommodate ‘when an employer does not obstruct an informal interactive process; makes reasonable efforts to communicate with the employee and provide accommodations based on the information it possesses; and the employee’s actions cause a breakdown in the interactive process.’” In less court-ish language, when an agency takes steps like this one did to find a workable accommodation for an employee, there won’t be a failure to accommodate under the standards of the Rehabilitation Act.

There are some differences between what some of the courts say and EEOC’s stance on some of these matters, and as always, FELTG will keep you in the loop. [email protected]

Related training:

Mold Allergy Turns into Harassment That Spoils OWCP Decision

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By Frank Ferreri, December 11, 2024

Quick facts:

  • A VA technologist was allegedly bullied after requesting accommodations for a mold allergy.
  • The technologist filed an occupational disease claim based on an emotional condition.
  • ECAB sent the case back to OWCP to consider new evidence from an arbitration decision that found the technologist was a qualified individual with a disability.

Sometimes, one thing leads to another. And, sometimes, one incident of legal significance opens the window to one or more other claims.

For example, there’s S.W. and Department of Veterans Affairs, No. 22-0565 (Oct. 17, 2024). It started with medical technologist’s complaints over mold in the workplace and ended up in a workers’ compensation claim, with a stop in disability-based bullying along the way.

What happened?

The technologist alleged he sustained an allergic reaction with respiratory, neurologic, and visual symptoms due to exposure to mold at his work location dating back to 1990. About two months later, the technologist filed another occupational disease claim alleging he sustained an emotional condition due to:

  1. Harassment by coworkers; and
  2. Disciplinary actions by supervisors.

Specifically, the technologist alleged: 1) two coworkers swore at him during training; 2) he was subjected to a pattern of discrimination; 3) his supervisor subjected him to disparate treatment and hostility on the basis of disability related to the mold allergy; and 4) he was denied reasonable accommodations.

OWCP denied the technologist’s emotional condition claim, finding the evidence of record was insufficient to establish a compensable employment factor. OWCP twice denied the technologist’s request for modification.

Later, OWCP received a union grievance arbitration, which found the technologist was a qualified individual with a disability based on his mold allergy. The decision also noted the agency discriminated against the technologist by not providing reasonable accommodations.

Despite this evidence, OWCP denied another request for reconsideration from the technologist, prompting him to take the claim before ECAB to require OWCP to reopen the case.

What did ECAB say?

Under 20 CFR 10.606(b)(3), to require OWCP to reopen a case for merit review, a claimant must provide evidence that:

  1. Shows OWCP erroneously applied or interpreted a specific point of law;
  2. Advances a relevant legal argument not previously considered by OWCP; or
  3. Constitutes relevant and pertinent new evidence not previously considered by OWCP.

ECAB determined OWCP improperly denied the technologist’s request for reconsideration of the merits of claim. ECAB faulted OWCP for not taking into consideration the contents of the union arbitration decision, which ECAB found was “new and relevant evidence regarding the underlying merit issue of whether [the technologist had] established a compensable employment factor.”

According to ECAB, the grievance arbitration decision, which found the technologist was a qualified individual with a disability based on his mold allergy, met the criteria for a merit review under 20 CFR 10.606(b)(3) — the decision constituted relevant and pertinent new evidence not previously considered.

Thus, ECAB directed OWCP to take another look at the case with the new evidence in hand and issue a new decision.

It isn’t every day that allergies, harassment, disabilities, and workers’ compensation pile up on an agency’s plate. However, it’s a reminder that addressing allegations of disability-based bullying early can make for a smoother and more peaceful work environment.

And remember: Reasonable accommodation requests don’t live in a vacuum. How an agency responds to an employee’s request could mean the difference between following multiple laws properly or ending up with compliance headaches. [email protected]

Related training:

The Grand Bargain: Injured Employee Can’t Sue Agency

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By Frank Ferreri, November 13, 2024

Quick facts:

  • A VA nurse was injured on the job, and the injury was covered under FECA.
  • The nurse’s attempt to also sue the agency was barred by the “exclusive remedy” doctrine.
  • Due to the “grand bargain” that is workers’ compensation law, the employee was limited in recovery to the $2,108.04 she received via FECA.

The workers’ compensation system across the country, including the law that governs federal agencies, is often called the “grand bargain” because it guarantees – with some exceptions – that an employee’s work-related injuries will be compensated in exchange for an assurance that the employer can’t be sued for those same injuries.

Recently, Lopez v. U.S., No. 1:23-cv-03538 (D.D.C. Oct. 8, 2024), demonstrated the “exclusive remedy” doctrine in action.

The injury

A longtime registered nurse for the Department of Veterans Affairs suffered muscle strains, nerve damage, and chronic pain after a patient attacked her while she was on duty. The nurse filed a Federal Employees’ Compensation Act claim with the Office of Workers’ Compensation Programs. OWCP accepted most of the claim and paid the nurse $2,108.04 to cover her related medical costs.

The nurse then filed an administrative claim under the Federal Torts Claims Act, alleging the hospital was negligent in not warning her of the danger the patient posed and in not providing her with a security guard for her protection. The VA denied the administrative claim, stating that her earlier FECA claims precluded her FTCA claims. The nurse brought the FTCA case to court.

Exclusive remedy rule

FECA contains an exclusive remedy provision. In exchange for offering fixed compensation in lieu of litigation rights, the law protects the government from suits under statutes like the FTCA. A government employee covered by FECA cannot bring suit under the FTCA until the Secretary of Labor, in the form of the OWCP, has first found that FECA did not cover the employee’s injuries. FECA’s exclusive remedy provisions nixed the nurse’s FTCA claim in court.

“Plaintiff is a federal employee who seeks compensation for injuries she incurred at the VA,” the court wrote. “She filed a FECA compensation form with the OWCP, the OWCP determined that the FECA covered her injuries, and the OWCP provided her with compensation.”

In an effort to spare her case from the exclusive remedy barricade, the nurse alleged she experienced emotional injuries. The court noted that although “the state of the law concerning FECA coverage for emotional and psychological injuries sustained by federal employees remains unsettled,” it didn’t make a difference because once FECA applies to a claim, exclusivity attaches.

The court dismissed the nurse’s tort claim against the agency.

The statute

In reaching its decision, the court relied on the language of FECA and a longstanding precedent case applying it, as follows.

5 USC 8116(c): This statute provides that the “liability of the United States under [FECA] … with respect to the injury or death of an employee is exclusive and instead of all other liability.”

Daniels-Lumley v. U.S., 306 F.2d 7269 (D.C. Cir. 1962): In a case involving a federal worker who slipped on an icy sidewalk, the court spelled out that “unless [a] plaintiff’s injuries were clearly not compensable under the FECA … , we believe that the Secretary of Labor must be given the primary opportunity to rule.”

In other words, the “grand bargain” kicks in when an employee’s injury triggers FECA coverage, which in turn protects the agency from having to shell out additional damages that might be awarded in a tort action.

The lesson

If a federal employee’s injuries are compensable under FECA – and especially if she’s already been compensated through the operation of FECA – she will be barred from bringing a tort action under another federal statute, such as the FTCA.

On a related note, if the injuries rise to the level of a disability, the agency has an obligation to accommodate the employee’s medical restrictions if doing so does not cause an undue hardship. [email protected]

Related training:

 

Keep Accommodations on the Radar After Workers’ Comp Claims

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By Frank Ferreri, October 15, 2024

Quick facts:

  • A mail carrier had a string of injuries over several years that resulted in workers’ compensation coverage and absences from the job.
  • The carrier’s supervisor repeatedly misclassified her time off and allegedly made derogatory remarks about her disability being a “lifestyle.”
  • Due to a lack of evidence about accommodations and the carrier’s status as a “qualified individual,” the court dismissed her Rehabilitation Act claim.

When a workers’ compensation scenario arises, chances are an employee has a disability that could find coverage under the Rehabilitation Act and be subject to that law’s requirements regarding reasonable accommodations.

However, an on-the-job injury doesn’t automatically trigger accommodation duties with no other documentation. As the court in Johnson v. DeJoy, No. 23-2342 (D.D.C. Sept. 17, 2024) explained, the employee still has to show an accommodation exists that it will allow her to perform the essential functions of her job.

Many years, multiple injuries

A full-time mail carrier was involved in an incident on the job where she reported that she was “wrongfully accused of hitting a customer with her mail truck and leaving the scene.” According to the carrier, she was sent home for about eight months before being offered her job back and was not paid for “the pain suffered” as a result of the incident.

After she returned to the job, and while she was two months pregnant, the carrier fell down a flight of stairs while delivering mail. She injured her lower back and tailbone, which required medical treatment and resulted in the loss of her pregnancy.

Because of the accident, the carrier suffered from “a severely depressed mood, anxiety, and symptoms of post-traumatic stress.” She was eventually diagnosed with bipolar disorder and post-traumatic stress disorder. The carrier sought FMLA leave, which was denied.

Later, the carrier took leave approved by the Office of Workers’ Compensation Program (OWCP). When she returned to work, she requested reasonable accommodations. According to the carrier, the agency responded “by creating a hostile work environment and retaliating against” her and by refusing to sign and return her leave slips and improperly coding her OWCP-approved leave as AWOL and LWOP.

After contacting an EEOC counselor, the carrier received and signed an Offer of Modified Assignment but did so “under protest,” as her new schedule interfered with her childcare responsibilities.

Eventually, the carrier and the agency reached a settlement agreement under which her supervisor would sign and return her leave slips and correct leave that had been improperly recorded.

The carrier returned to work. Within a few days, she was chased by a dog, fell, and injured her right wrist, shoulder, lower back, and both knees. After some delay, the OWCP accepted her request for continuation of pay (COP). Again, however, the supervisor improperly coded her absences as LWOP or annual leave.

Human resources informed the carrier her health benefits had been terminated because she had not remained in a pay and duty status for eight pay periods, prompting another EEOC complaint and instruction from OWCP for the agency to provide the carrier with a job that complied with her medical restrictions.

The carrier returned to work and, on several occasions, was required to perform work in violation of her medical restrictions. Again, the carrier had to take leave and again had her absences misclassified.

Following an alleged statement from the supervisor that the carrier’s disabilities were a “lifestyle,” the carrier brought a Rehabilitation Act claim, alleging a failure to accommodate.

The carrier’s case

Under the Rehabilitation Act, agencies must make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability. To be a “qualified individual,” an employee must be able to perform the essential functions of a job with or without reasonable accommodation. While a determination that an employee is not a qualified individual is rare on a motion to dismiss, it can be appropriate where an employee has not indicated that she could perform the essential functions of her job and has not identified a reasonable accommodation that would allow her to do so.

The court granted the agency’s motion to dismiss the carrier’s failure to accommodate claim. She failed to allege what her essential functions were and to present relevant reasonable accommodation options to the court.

“Rather, [the carrier] merely states that a ‘reasonable accommodation would have allowed her to fulfill all essential functions of her job,’” the court wrote, explaining that such a statement was “a legal conclusion that the court need not accept as true.”

The court noted the only evidence the carrier presented as to qualification was her assertion that she was “otherwise qualified for her position,” due to her long and successful employment history.

The court interpreted this argument as the carrier asking it to infer from her employment history that she could perform the essential functions of her job with or without reasonable accommodations.

Lesson for agencies

The court wrote that “it is unable to make this inference,” due to a lack of evidence on whether and to what degree she was impaired, and how the nature and severity of her impairments evolved over the course of about 12 years. Thus, the court found the carrier had not stated a Rehabilitation Act claim.

When an employee is dealing with matters involving workers’ compensation, it is not a bad idea to consider whether accommodations might be in order. At the same time, an agency will not be at fault for breakdowns in the interactive process when an accommodation has not been proposed, so as to allow an employee to perform the essential functions of her job or desired role.

Similarly, if a case ends up in court, and an employee doesn’t have the details on what makes her qualified for her job, the court will have a hard time moving ahead with the case. The agency didn’t do itself any favors by continually mixing up how the employee’s time off was recorded (or not, as it were). The court doesn’t tell us much about the emotional backstory of the case, but it’s not hard to imagine an employee feeling frustration from the kinds of repeated mistakes the carrier had to deal with.

Remember, COP is an entitlement for Federal employees injured on the job in which the agency continues to pay an employee her regular pay during a period of disability for up to 45 days. In this case, the mix-up interfered with that benefit. As a result, it affected the carrier’s finances.

Mistakes happen, but when they keep happening, it can turn the temperature up on a dispute and bring a case into court that might have had a quicker, easier resolution. [email protected]

Related training:

Take-it-or-leave-it Telework Offer Raises Accommodation Questions

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By Frank Ferreri, September 10, 2024

Quick facts:

  • An EPA economist had allergies that required him to be away from certain irritants.
  • The agency accommodated him until it moved a heavily perfumed coworker near him.
  • The agency’s offer of 100% telework or nothing led a Circuit Court to question the offer and the interactive process.

Last month, we told you a reasonable accommodation doesn’t mean the employee necessarily gets exactly what they want. Well, a case that came out in the meantime shows that the same holds true for the agency side. In Ali v. Regan, No. 22-5124 (D.C. Cir. Aug. 9, 2024), the D.C. Circuit Court of Appeals found the agency’s offer of telework or nothing as an accommodation left questions regarding the reasonableness of the offer and the sufficiency of the interactive process.

The fragranced coworker

An Environmental Protection Agency economist had severe allergies. The agency was aware and provided a workspace that accommodated the employee’s health needs.

Things changed, however, when the EPA placed a worker known for wearing heavy perfume in the cubicle next to the economist. When the economist asked for a private office or conference room to work in, the EPA offered a different cubicle, which the economist also found “very perfumy.”

The EPA requested and received medical information from the economist regarding his allergies. The agency offered the economist a take-it-or-leave-it accommodation of 100% telework, which the employee had not requested.

The economist asked the agency for other options and asked the coworker to stop wearing fragrances. Neither yielded a solution. Thus, he filed a Rehabilitation Act claim after an ALJ and the EEOC ruled in the EPA’s favor.

The District Court granted summary judgment in favor of the EPA as well, concluding the economist failed to act in good faith during the interactive process because he rejected telework without an explanation.

Rehabilitation Act requirements

The economist appealed to the D.C. Circuit Court of Appeals, which focused on the reasonableness of the accommodation offered.

The Rehab Act’s reasonable accommodation standards are the same as those applied under the Americans with Disabilities Act. Under the ADA, “reasonable accommodations” include making existing facilities usable by people with disabilities and may involve job restructuring, modified scheduling, and reassignment. The EEOC has specified that adjustments to the work environment may be necessary to provide a reasonable accommodation.

In its appendix to the ADA regulations, the EEOC advises that employers should:

  1. Analyze the particular job involved and determine its purpose and essential functions.
  2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation.
  3. In consultation with the employee to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position.
  4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
More questions

The D.C. Circuit reversed the District Court’s decision, finding it erred in concluding the economist caused a breakdown in the interactive process. According to the D.C. Circuit, it was up to a jury to decide the disputed material facts regarding the reasonableness of the EPA’s proposed final accommodation, which was offered without first meeting with the economist to discuss accommodation options.

The D.C. Circuit noted the economist provided all of the information that the agency requested of him, and that information is what the agency used to formulate its accommodation offer. The D.C. Circuit also found questions regarding whether the economist did, in fact, reject the EPA’s offer.

“The record does not indicate that [the] EPA spoke with [the economist] at all about an appropriate accommodation between the time it determined he qualified for one and its proffer of the 100% telework accommodation,” the D.C. Circuit wrote. “Instead, [the] EPA presented its offer as an apparent fait accompli, without ever discussing with [the economist] the effectiveness or reasonableness of 100% telework.”

The D.C. Circuit also pointed out that the economist tried to re-engage the agency in discussion about alternative accommodations, following up once a week for three weeks on his request for a private working space with no evidence that the EPA responded to any of the follow-ups other than an email stating “you have been offered a reasonable accommodation of 100% telework and have declined the offer.”

Was the offer reasonable?

The D.C. Circuit also found triable issues as to whether the all-or-nothing telework offer was reasonable, given evidence that the economist could “not print things” at home due to allergic reactions he experienced “to emissions from printers” and that he lacked an office space “set up.”

While telework is often a successful option, especially in a post-COVID world, the D.C. Circuit pointed out that assumptions can be risky, and some employees may not be suited for separation from the in-person environment.

“Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability,” the D.C. Circuit reasoned. “In the latter case, the factual record would have to justify the reasonableness of such forced segregation, such as by showing the absence of an integrative reasonable accommodation.”

The D.C. Circuit sent the decision back to the District Court.

A dissenting judge pointed out that, five years earlier, the economist worked at home temporarily as a reasonable accommodation. That experience, along with a lack of evidence on how working at home would hurt the economist’s career, supported the EPA’s position that telework was a reasonable accommodation.

As the court phrased it, requiring an employee who has successfully worked in the office for years to leave the workplace permanently as the sole means for accommodating a disability – without first discussing it with the employee or exploring integrative alternatives – risks running afoul of the Rehabilitation Act. It is still up to the employee to show the feasibility of some other option. However, just because telework is an excellent accommodation in many cases does not mean it will be reasonable in every case. [email protected]

Related training:

  • March 24-28, 2025: EEOC Law Week

Accommodations: Reasonable Doesn’t Always Mean Preferred

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By Frank Ferreri, August 12, 2024

Quick facts:

  • An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
  • The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
  • The court found the agency engaged in a good-faith interactive process for Rehabilitation Act

Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.

However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.

What happened in Uygur?

A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.

Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.

The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.

The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.

The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.

To establish a failure to accommodate under the Rehabilitation Act, an employee must show:

  1. She had a disability, and the agency knew it;
  2. She requested an accommodation or assistance;
  3. The agency did not make a good-faith effort to assist; and
  4. She could have been reasonably accommodated.

In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.

The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:

  1. Allowing the attorney to attend the DC conference in person;
  2. Providing the attorney with three assistive computer programs; and
  3. Facilitating training on the computer programs, “albeit virtually as opposed to in person.”

The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.

“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.

In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.

As a result, the court dismissed the employee’s Rehabilitation Act claim.

The Lesson

A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job.  The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.

It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. [email protected]

Related training:

 

How Long is Too Long for Delay on Reasonable Accommodations?

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By Frank Ferreri, July 17, 2024

They say patience is a virtue. Does that mean the interactive process on an employee’s reasonable accommodation can go at a snail’s pace?

Not according to the court in Pelton v. DeJoy, No. 19-1766 (D.D.C. May 3, 2024), which indicated a four-year timeline between request and accommodation would be a delay too long to withstand a failure-to-accommodate challenge under the Rehabilitation Act.

The case involved an attorney hired by the U.S. Postal Service in 2013. Her disabilities included a spinal cord injury, cervical fusions, bilateral thoracic outlet syndrome, nerve damage, depression, and a genetic clotting disorder. During her time with the USPS, the attorney was diagnosed with or treated for peripheral nerve entrapment, carpal tunnel syndrome, tendon and ligament tears, tremors, anxiety, depression, chronic insomnia, and weight gain.

The attorney said she requested an ergonomic chair, desk, keyboard, and mouse during her first week on the job. She presented these requests to the employee who conducted her orientation, however, was told that there was no room in the budget. Instead, she was shown “a room full of broken office equipment” from which she was expected to select something that would work for her.

In 2014, the attorney received an ergonomic keyboard and mouse. In 2017, she received an ergonomic chair and desk.

Because of the failure of the USPS to accommodate her disabilities, the attorney allegedly developed tendon and ligament tears as well as pain.

In 2017, the attorney’s responsibilities changed, requiring her to perform additional typing-intensive work. The attorney’s doctor said she was to limit typing to only 20 minutes per hour and no more than three hours per day. Upon receiving this information, the USPS referred the attorney to the USPS’s reasonable accommodations committee, which began the interactive process.

Along with the ergonomic chair and desk, the attorney also received voice-dictation software.

Nonetheless, the attorney sought and received Family and Medical Leave Act leave before suing under the Rehabilitation Act for a failure to accommodate.

To establish a failure to accommodate claim, an employee must show:

  1. She had a disability within the meaning of the Rehabilitation Act.
  2. Her employer had notice of her disability,
  3. She was able to perform the essential functions with accommodation and
  4. Her employer denied her request for a reasonable accommodation.

In the attorney’s case, only the fourth factor was in dispute. She alleged that the USPS unreasonably delayed in granting her requested accommodations. The court sided with the USPS on the keyboard and mouse, reduced typing time, and voice-dictation software. However, it found triable issues regarding the attorney’s request for an ergonomic chair and desk.

Although it was disputed as to whether the attorney asked for the chair and desk as early as 2013, the court found that it was a question for the factfinder to decide.

“A reasonable jury could find that she requested an ergonomic chair and desk in 2013, that her request went unfulfilled for four years, and that such delay was unreasonable,” the court wrote.

The court noted that case law hadn’t set a bright line on how long is too long but found guidance from the following:

Ward v. McDonald, 762 F.3d 24 (D.D.C. 2014). In a footnote, the Ward court noted that the three months that passed between when the employee made her request and when she resigned was “no long delay” and rebuked the employee for cutting the interactive process short and “blam[ing] her employer for not immediately granting her specific request.”

Faison v. Vance-Cooks, 896 F. Supp. 2d 37 (D.D.C. 2012). The agency did not offer an explanation for a more-than-three-year delay in providing an accommodation other than to say that it was not “in any way intentional.” The court found the agency didn’t reasonably accommodate the employee’s need for voice-activated computer equipment.

Mogenhan v. Napolitano, 613 F.3d 1162 (D.C. Cir. 2010). This case suggested a three-year delay would be actionable, but noted that the employee in the case, who had sinus problems, didn’t give a date for when she attempted to start the interactive process. She didn’t have a basis to argue that the interactive process took so long as to constitute a failure to accommodate.

While the attorney’s case and the precedent cases don’t necessarily lend themselves to a hard-and-fast rule, common sense notions of “reasonable” should prevail. There are also a number of EEOC cases that discuss accommodation delays. If the interactive process is shifting from a months-long process to a years-long ordeal, it’s likely going too slow, and the agency may find itself in failure-to-accommodate troubles. [email protected]

Training on this Topic:

 

 

 

After Going Through Legal Hoops, Fed’s Worker Comp Case Rebounds

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By Frank Ferreri, June 10, 2024

Anyone who’s hooped it up on the hardwood or the playgrounds for years and years has probably felt the aches and pains that come with being a middle-aged baller.

For a 57-year-old airway transportation systems specialist, however, a pesky basketball injury threatened his Federal workers’ compensation case in C.B. and Department of Transportation, Federal Aviation Administration, No. 21-0323 (ECAB April 18, 2024). Nevertheless, his use of  the stairs while traveling for work offered backing for his claim.

The specialist filed a traumatic injury claim, alleging he sustained left knee and ankle injuries while on temporary duty. On the CA-1, the specialist’s supervisor acknowledged the injury happened in the specialist’s performance of duty.

While being treated for the injury, the specialist said he injured his left ankle and knee the prior day while playing basketball, leading the agency to controvert the claim on the basis that the specialist was not in the performance of duty at the time of the injury.

The specialist submitted his doctor’s report, which stated he twisted his left knee and ankle while exercising, had undergone a left knee arthroscopy meniscectomy five or six years prior, and was asymptomatic until the day at issue.

The specialist submitted a statement that he injured his left knee and ankle while climbing six flights of stairs to his room from the hotel exercise facility early in the day and that he reinjured his left knee and ankle while shooting hoops in a fitness center later that evening. The specialist related that he was on travel status for training at the time of the injury.

In response, the agency said the specialist’s job was not associated with any physical fitness or medical requirements. Also, he was not participating in a supported or sponsored after-work activity at the time of the injury.

OWCP denied the claim. A representative of OWCP’s Branch of Hearings and Review affirmed the decision over the specialist’s argument that he was a rescue climber, had to maintain a level of physical fitness, and the agency was aware of it. Thus, the specialist appealed to the Employees’ Compensation Appeals Board.

The Applicable Law

The Federal Employees’ Compensation Act covers an employee 24 hours a day when the employee is on travel duty status and engaged in activities essential or incidental to such duties. The “general rule” regarding coverage of employees on travel duty status or temporary-duty assignments is that an employee whose work entails travel away from the employer’s premises is considered to be within the course of his employment continuously during the trip, except where there is a “distinct departure” on a personal errand. For an injury to be “in the course of employment,” ECAB has held that it must occur:

  • At a time when the employee may reasonably be said to be engaged in the agency’s business;
  • At a place where the employee may reasonably be expected to be in connection with his employment; and
  • While the employee was reasonably fulfilling the duties of his employment or engaged in something incidental thereto.

ECAB found that the specialist met his burden of proof to establish a traumatic incident in the performance of duty on the day in issue. ECAB noted:

  • The specialist injured himself on the stairs in his hotel.
  • The specialist’s activity at the hotel was reasonably incidental to the duties of the temporary assignment contemplated by the agency.

Because OWCP didn’t previously reach the question of whether the specialist sustained an injury causally related to the employment incident, ECAB sent the case back for a new decision.

The Takeaway

ECAB emphasized FECA covers an employee 24 hours a day when the employee is on TDY status, with that coverage disappearing when the employee engages in something that is not “reasonably incidental” to the duties of the temporary assignment.

In this case, going up and down stairs at a hotel was reasonably incidental to the specialist’s travel status due to agency-required training. Had it strictly been a basketball injury, it’s difficult to say how ECAB would have come down, and it would take more consideration of the evidence and applicable law to flesh out that case.

However, the “reasonably incidental” part of the ECAB’s conclusion in this case makes sense and provides a guideline to work with it: If an injury happens and that injury goes along with the employee’s assignment at hand, it could make for an easy layup of a workers’ compensation claim. [email protected]

ECAB Ruling: Specialist Fell in Performance of Duty on ‘Premises’

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By Frank Ferreri, May 13, 2024

The Employees’ Compensation Appeals Board could have helped me  and, more importantly, FELTG newsletter readers if it had published a recent decision ahead of the publication of the April issue’s “going & coming” rule story.

Not to worry, though, here’s what happened in A.S. and Department of Homeland Security, Transportation Safety Administration, No. 21–1143 (ECAB March 21, 2024), a premises rule case involving a worker’s stumble in an employee parking lot on his way in to work.

A TSA specialist filed a CA-1, alleging he fractured his left arm in the performance of duty. According to the specialist, he tripped and fell in the lot on his way to work. The agency controverted the claim, asserting the specialist was injured before his shift began. OWCP agreed and denied the claim based on its analysis that the parking garage was not part of the agency’s premises.

Under the Federal Employees’ Compensation Act (FECA), the injury must be sustained in the performance of duty, and any disability or medical condition for which compensation is claimed must be causally related to the employment injury.

If an employee has fixed hours and place of work, injuries that occur on the employer’s premises while going to or coming from work, before or after working hours, or at lunchtime are compensable. This is the premises rule. It is applied to cases where it is affirmatively demonstrated that the employing establishment owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees.

Even if an agency does not own or control the place of injury, the place may still be considered part of the “premises.” ECAB and courts will make the determination on a case-by-case basis.

ECAB uses these factors to determine if a parking area is part of an agency’s “premises:”

  • Whether the agency contracted for exclusive use of the parking area for its employees.
  • Whether parking spaces were assigned by the agency to employees.
  • Whether the parking areas were checked for unauthorized cars.
  • Whether parking was provided without cost to employees.
  • Whether the public was permitted to use the garage.
  • Whether other parking was available to employees.

The specialist met his burden of proof to establish the trip and fall occurred in the performance of duty, according to ECAB. It found the lot was the agency’s “constructive premises” because:

  • The agency arranged for the use of the lot and provided subsidies for its employees to park there.
  • The lot was restricted to employees. The public did not have access.
  • The specialist was responsible for displaying a parking pass, and the area was routinely monitored for compliance.
  • The agency paid a monthly fee for the specialist to park in the lot, and he was entitled to one unreserved space there.
  • The CBA confirmed the agency had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel and to avoid significant impairment of its operating efficiency at the nation’s airports.

ECAB also explained that the specialist was engaged in activities that may be described as incidental to his employment because he had fixed hours and a fixed place of employment. The fall occurred at 12:35 pm in advance of his 1 pm shift.

ECAB sent the case back to OWCP to analyze and develop the medical evidence in determining what, if any, benefits were due to the specialist.

The takeaway: To get to his job, the specialist parked where the agency designated for him to park and paid for him to do so. If it’s something that the agency requires or makes available so that a worker can get to her job, chances are it will be within the scope of the “premises rule.” [email protected]

 

Should I Stay or Should I Go? Either Way, Workers’ Comp Rule Applies

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By Frank Ferreri, April 15, 2024

For those of us who don’t work remotely 100 percent of the time, getting to and from work, with possible stops along the way, comes with the risk of getting injured.

To handle the “what ifs” in the world of going to and coming home from work, workers’ compensation law across the country, and in the Federal government, has developed what’s known as the “going and coming” rule, which is also called the “coming and going” rule, depending on which judge you read.

The Employees’ Compensation Appeals Board (ECAB), following the lead of state and Federal courts around the country, has maintained that for employees having fixed hours and a place of work, injuries occurring off premises while going to and coming from work before or after work hours or during a lunch break are not compensable. However, there are exceptions, some of which we explore below.

Special Errand Rule

An employee who has identifiable time and space limits on her employment makes an off-premises journey that would normally not be covered under the going and coming rule. However, if the trouble and time of making the journey or the special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial, it can be viewed as an integral part of the service itself. See A. Larson, The Law of Workers’ Compensation § 13.00 (2007).

Case example

N.J. and Department of Justice, Federal Bureau of Prisons Metropolitan Detention Center, No. 20-1148 (ECAB 2021). A corrections officer filed a CA-1, alleging she was injured in a motor vehicle accident while in the performance of duty. She was driving to firearms training when a large tree branch fell through the windshield and roof of her vehicle just before she was rear-ended by a speeding car.

OWCP denied her claim, finding that the officer’s injury did not occur during the course of her employment. ECAB disagreed, noting the special errand exception was met because:

  • She was expected to perform her official duties on requalifying with her required weapons.
  • A daily assignment sheet demonstrated that she was assigned to perform firearms training on the day of the employment incident.
  • An assistant human resources manager indicated that the officer’s firearms training was a yearly requirement associated with her employment duties.

Rural Carrier Exception

When an employee is required to bring along her own car, truck, or motorcycle for use during the working day, the trip to and from work is, by that fact alone, considered within the course of employment. See Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013). Rural carriers may use their own vehicles to deliver their routes, which is a benefit to the agency. The carriers may be deemed in the performance of their duties when they are driving their vehicles to and from their route.

Case example

J.C. and U.S. Postal Service, Kentuckiana District, No. 17-0995 (ECAB 2017). A rural carrier, who was working as a supervisor of customer services, alleged she injured her shoulders and neck when she was involved in a motor vehicle accident around 7:40 a.m. on the day in issue. OWCP decided the carrier was not in the performance of duty when injured.

On appeal, ECAB agreed. The board noted the carrier was not driving her vehicle to work as a rural carrier but for her role as an acting supervisor. “Regardless of whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled to perform the task of delivering mail,” ECAB wrote. “Rather, she was driving to the Benton, Kentucky, post office where she had been an acting supervisor for four months.”

Workers on Travel Status

FECA covers an employee 24 hours a day when the employee is on travel status and engaged in activities essential or incidental to such duties.

Case example

J.N. and Department of Homeland Security, Transportation Security Administration, No. 14-1764 (ECAB 2015). An air marshal alleged he sustained a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood loss, and extensive bruising when he was involved in a motor vehicle accident while en route from his home to an offsite training class. The air marshal alleged he was on the clock and that by reporting directly to the training location, he avoided three hours of overtime pay status for the agency.

OWCP disagreed, finding the air marshal was not in the performance of duty. ECAB affirmed. According to the Board, the air marshal was permitted to drive his personal vehicle to the training session for personal convenience, and precedent cases established that air marshals are not in travel status while commuting to work.

“His travel to attend training was no more for the benefit of the employer than any other worker’s commute,” ECAB wrote. “Appellant’s decision to travel to the training in his personal vehicle was by his own choice, not by any mandate of the employer.” 

Premises Rule

This exception applies just about everywhere in U.S. workers’ compensation law and covers situations where an employee isn’t on the clock or on the job yet but experiences an injury on the employer’s premises. A common locus for premises rule cases is a parking lot, and the premises doctrine is applied to those cases where it is affirmatively demonstrated that the employer owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees. Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

Case example

Hartman and Social Security Administration, Office of Hearings and Appeals, No. 01-749 (ECAB 2004). A legal assistant was in the underground parking garage after a power outage led to all employees being released from work. She fell over a bicycle rack and injured her hands, shoulders, knees, legs, back, and neck. OWCP applied the going and coming rule to reject the assistant’s claim. It noted her injury did not fall within an exception to the rule that injuries sustained by employees having fixed hours and places of work while going to or coming from the job are not compensable.

ECAB noted the premises rule has a close relative — the “special hazard” rule. However, it didn’t apply here because “the hazard encountered by appellant was not an exceptional or uncommon hazard.” ECAB likened the darkened parking garage to dangers that arose in other cases in which a special hazard exception did not apply, including:

  • An assault on the streets while going to work. Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
  • Wax on a public plaza immediately outside the only exit. Sallie B. Wynecoff, 37 ECAB 728 (1986).
  • A traffic accident resulting from a backup for a security checkpoint. Bettie J. Broadway, 44 ECAB 265 (1992).
  • An icy sidewalk. Denise A. Curry, 51 ECAB 158 (1999).

In each of these cases, ECAB found the hazards were common to all travelers.

Proximity Exception

Treated as a subcategory of the premises rule and dependent on the special hazard exception, the proximity exception stands for the principle that the course of employment should extend to an injury that occurs at a point where the employee is within the range of dangers associated with the employment. There must be a special hazard before the proximity rule kicks in.

Case example

D.C. and U.S. Postal Service, Post Office, No. 08-1782 (ECAB 2009). A custodian injured his right wrist when he “fell on ice at a curb” immediately following his work shift. OWCP rejected the claim explaining that, although the USPS was responsible under local law for keeping the sidewalk clear of ice and snow, the sidewalk was not part of the agency’s premises.

ECAB agreed because the sidewalk in question was a public sidewalk. The custodian did not present evidence the sidewalk was used exclusively or principally by agency employees for the convenience of the agency. There are other exceptions that are generally recognized as well, including in the following scenarios:

  1. Where employment requires the employee to travel on the highways.
  2. Where the employer contracts to and does furnish transportation to and from work.
  3. Where the employee is subject to emergency calls, as in the case of a firefighter.
  4. Where the employee uses the highway to do something incidental to her employment with the knowledge and approval of the employer.
  5. Where the employee is required to travel during a curfew established by local, municipal, or state authorities because of civil disturbances or other reasons.

What does all this mean for an agency? It’s hard to predict how a case will go, and most results depend on case-specific facts. However, as a basic concept, the more an employee’s coming or going is to do something for the agency rather than herself, the more likely it will be FECA-covered. [email protected]