By Deborah J. Hopkins, April 15, 2024

In this newsletter, we’ve talked about the “coming and going rule” and an agency’s responsibility in the workers’ comp arena. In previous newsletters, we’ve discussed the dangers of altering an existing accommodation.

On a related note, what happens when an agency changes an accommodation it provided to assist an employee with ambulatory issues accessing (coming to and going from) her workspace? Consider Malorie D. v. DOJ/DEA, App. No. 2019003000 (Sept. 15, 2020).

The complainant worked as GS-7 intelligence program support assistant. She requested a reasonable accommodation of a parking space that was close to the building and to the door nearest her workstation. She specifically asked to be assigned the only parking spot reserved for individuals with disabilities in her building’s west (supervisor’s) parking lot, because the parking area was on a flat surface and the closest lot to her office. The agency approved her request.

Thereafter, two other employees who had parking placards because of disabilities also requested reserved parking. The agency initially reserved two parking spaces in the south parking lot for these individuals. Just a few days later, agency management sent an email to all employees in the office that any individual “requesting reserved parking was required to use designated spots in the east parking lot; [and] that entry to the building would be through the secured entry point…” which was also known as the “front door.” Id. at 2.

The complainant informed the agency the change in her accommodation “was problematic because the handicap spaces in the east parking lot were farther from her office than the space in the west parking lot and that the front door was often not attended to by duty personnel, forcing her to walk a long distance to the north entrance of the building.” Id. In addition, the east parking lot was not flat. It had curbs and ramps that caused her to trip and fall.

During the precomplaint process, the agency supervisor who revoked the complainant’s existing accommodation informed the EEO counselor he was no longer able to provide the complainant with her original parking spot because he could not “be put in a position to decide which employee is more handicapped than another. Because of the problems associated with this particular handicap spot in the Supervisors [west] parking area, the handicap designation is being removed from the spot.” Id. at 3. The agency designated the complainant’s previous parking spot as reserved for the employee of the month.

The complainant filed a formal EEO complaint. After initially requesting a hearing, she withdrew the request. The agency issued a Final Agency Decision (FAD). The agency determined that after revoking the complainant’s parking spot in the west, it still provided her with a reasonable accommodation when it offered her designated parking in the east lot because the east lot was only “slightly further away from Complainant’s office than her previously assigned parking space in the west parking lot.” Id. at 4. In addition, because the complainant was only unable to access the building via the front door just five times in six months, “the infrequent lack of immediate access does not render the accommodation in the east parking lot unreasonable.” Id.

On appeal, the EEOC disagreed with the FAD. They found the agency failed to “engage in the interactive process prior to removing the accommodation it had provided her for nearly four years.” Id. at 7.

We’ve said it before and we’ll say it again: If an accommodation is working, the agency should not revoke it without, at a minimum, engaging in the interactive process to see if another effective accommodation is available.  And because the agency did not do so, EEOC remanded the case for a compensatory damages assessment.

This summer we’re bringing back our always-popular Reasonable Accommodation series, with six 60-minute sessions, each targeted to a particular accommodation challenge. Check out the topics and we hope to see you there. [email protected]

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