Last week, I was teaching a day on The Federal Supervisor’s Role in EEO to a group of GS-14 and 15 supervisors at an agency in Atlanta. One of the topics that generated a lot of discussion – and about which there was some confusion – was reasonable accommodation for disabilities. Specifically, there were questions about what “reasonable” means, and whether the employee is entitled to the accommodation of her choice.
Now, just to make sure we’re all on the same page, let’s have a quick review. Federal employees (and applicants) are entitled to participation in the reasonable accommodation interactive process in two areas: physical or mental disability (under the Rehabilitation Act/ADA), and religion (under Title VII). Agencies must accommodate (1) the disabilities of qualified employees, and (2) the bona fide religious beliefs and practices of employees – unless doing so would create an undue hardship on the agency.
We won’t get into the process of determining who is a qualified individual with a disability here today, so let’s assume we have an employee who is qualified because she has a medical condition that causes severe back pain, and she needs an accommodation in order to perform the essential functions of her job.
A reasonable accommodation is a logical adjustment to the job and/or the work environment that enables a qualified person with a disability to perform the essential functions of the position without doing harm to herself or others. This does not mean the employee gets the best possible accommodation. Some options for accommodation might be:
- Accessible facilities
- Flexible starting or ending times, or brief break periods
- Special software
- Equipment or devices
- Furniture and office layout modifications
- Service animals
- Hearing interpreters
- Modifying job duties, without changing the essential job functions
In looking at what accommodations you might be able to provide and determining whether there’s an undue hardship in providing the accommodation, you’ll also want to take into consideration the overall size of your agency’s program, the type of facilities, the size of your budget, the composition and structure of the workforce, and the nature of the accommodation. 29 CFR 1630.2 (p). Agencies beware, though – money is usually not a defensible reason to deny a reasonable accommodation, especially when another accommodation is not available.
Back to our hypothetical employee. The back pain she is experiencing means that she can’t sit for more than 10 minutes at a time, and she has provided acceptable medical documentation that says as much. She generally takes a bus to work and the ride is about 20 minutes, but occasionally she will drive her car and that takes about 15 minutes. She has requested full-time telework in order to accommodate her disability. Do you have to give her full-time telework?
No, you don’t. You might do that, and maybe it’s a good idea, but remember you don’t have to. You’d want to consider things like:
- Whether the essential functions of the job can be performed at home. If she works on computer systems or with sensitive information that aren’t accessible off-site, telework won’t allow her to perform the essential functions of her job.
- Whether she requires management oversight in order to meet her minimum performance rating. If the employee has demonstrated that she can’t complete her work unsupervised, you don’t have to give her telework because she asked for it. See Yeargins v. HUD, EEOC No. 0320100021 (EEOC OFO 2010).
- Whether another accommodation would allow her to perform the essential functions of her job, at the agency. Things like ergonomic chairs, standing desks, frequent breaks to allow her to walk around the building to stretch her back, and other options might be better accommodations than the full-time telework she’s requested.
The bottom line here is that and employee does not get to unilaterally dictate to the agency that she be granted the accommodation she prefers. That’s why the process is called the interactive process; it suggests agencies and employees work together informally to find an acceptable outcome. 29 CFR 1630.2(o)(3). For more on this check out a recent case, Complainant v. Department of Veterans Affairs, EEOC No. 0120122961, (EEOC OFO 2015), in which the complainant requested a number of specific accommodations, and the agency provided alternative accommodations and prevailed in the EEO complaint. Hopkins@FELTG.com