By Dan Gephart, February 14, 2023
It was a reasonable accommodation success.
Until it wasn’t.
The accommodation process is a fluid one. You can’t provide an accommodation and then forget about it. This is particularly important now, as many employees with reasonable accommodations make their way back to the physical workplace.
Kristopher M. v. Department of Transportation, App. No. 2019001911 (EEOC 2020) provides a perfect lesson on the importance of continuous communication with employees AFTER they receive accommodations, something that we at FELTG have coined the “Check-in.”
[Editor’s note: For more on this topic, register for Revisiting Existing Reasonable Accommodations, a 60-minute webinar on April 13.]
Upon his hiring in 2005, an IRS agent requested and received a BAT keyboard as a reasonable accommodation. The agent had paralysis in his left hand and the keyboard allowed him to enter data with his right hand.
So far, so good, right?
Fast-forward seven years. The employee’s typing workload increased, causing serious strain, fatigue, and a tingly pain in his right hand. The BAT keyboard was no longer an effective accommodation. The agent requested Dragon software in 2012, and the agency approved it. The software was installed on the employee’s computer, and he was provided training.
So far, so good, right?
Unfortunately, the Dragon software did not work well with the agent’s computer. His computer screen would freeze. Applications would just shut down. He was unable to simultaneously use the Dragon software with the other software programs required for his job (Word, Excel, etc.).
It is here, FELTG Nation, where the process broke down.
The agent struggled with the software and let the agency know. Per the EEOC decision, it appears that there was a back-and-forth between the reasonable accommodation staff and IT about who had the responsibility to address the employee’s computer issues. Meanwhile, the employee went back to using the BAT keyboard. He developed carpal tunnel syndrome in his right hand and pain in his right arm and neck.
Even though it had twice listened to the employee and gave the employee his requested accommodation, the agency still failed to provide the employee with an effective accommodation, per the EEOC AJ.
On appeal, the commission determined the agency’s efforts to deal with the Dragon software/computer issues were either unduly delayed or only partially implemented. The Dragon software was not an effective accommodation, the EEOC ruled. It ordered the agency to engage in a rigorous interactive process with the employee for a 60-day period to come up with effective accommodations.
Wouldn’t you rather just do the FELTG Check-in with employee, see how the accommodation is working and make the adjustments, when necessary, rather than be ordered by the EEOC to conduct a specified period of the interactive process?
The FELTG Check-in is free and ensures that your employee has all the tools he/she/they need to do the job’s essential functions and help the agency meet its mission. Skipping the FELTG Check-in could be damaging to productivity, morale, and the agency’s bottom line. Beyond the required interactive process, the agency in the Kristopher case was required to:
- Pay the agent $75,000 in compensatory damages within 60 days.
- Pay the agent $68,761.69 in attorney’s fees and costs ordered by the AJ within 60 days.
- Provide the supervisors and coordinators involved to take at least eight hours of reasonable accommodation training.
Remember: Your agency’s obligation to provide an effective accommodation does not end when you provide an accommodation. You must ensure the accommodation is actually effective. Gephart@FELTG.com