By Ann Boehm, January 17, 2024
In the past year, I have seen an uptick in questions regarding how to remove an employee based upon medical inability to perform.
Removal based upon medical inability to perform is an effective, and probably underutilized, process. To help you good folks out there, I decided it would be an opportune time to answer some of these questions.
Is a medical inability to perform removal a 5 U.S.C. chapter 75 action?
Yes. A removal for medical inability to perform is an “adverse action,” so removal must promote the efficiency of the service. The removal may be appealed to the Merit Systems Protection Board (Board).
Is a Douglas factor analysis required in a medical inability to perform removal?
No. Like a furlough, a removal for medical inability to perform is not disciplinary, so Douglas does not apply. See Brown v. Dep’t of the Interior, 2014 MSPB 40 (Douglas analysis not required “because of the nondisciplinary nature of the agency’s action.”)
If Douglas does not apply, how does the agency prove removal is appropriate?
The Board explained in Brown, “the correct standard to be applied in determining the penalty for a removal based on [medical] inability to perform is whether the penalty of removal exceeded ‘the tolerable limits of reasonableness.’” Id.
Um OK, so how do we show removal did not exceed “the tolerable limits of reasonableness”?
The first step is to “prove a nexus between the employee’s medical condition and observed deficiencies in his performance or conduct, or a high probability, given the nature of the work involved, that his condition may result in injury to himself or others.” Clemens v. Department of the Army, 2014 MSPB 14.
The Board expected this follow-up question: “In other words, the agency must establish that the appellant’s medical condition prevents him from being able to safely and efficiently perform the core duties of his position.” Id.
What are the core duties of the position?
Clemens is instructive on this point. “The core duties of a position are synonymous with its essential functions, i.e., the fundamental job duties of the position, not including marginal functions.” Id. The Board relies upon the EEOC’s regulations regarding essential functions.
Factors to consider: “the reason the position exists is to perform that function, because of the limited number of employees available among whom the performance of that job function can be distributed, or because the function is highly specialized so that the incumbent is hired for his or her expertise or ability to perform the particular function.” Id.
What evidence should the agency provide to show the essential functions of the job?
The Board, like the Equal Employment Opportunity Commission, will consider “the employer’s judgment as to which functions are essential, written position descriptions, the amount of time spent performing the function, and the consequences of not requiring the incumbent to perform the function.” Id.
What are some examples of supporting evidence?
If you haven’t figured this out, yet, Clemens is a great case to read if you are pondering a medical inability to perform removal. The employee was a supervisory public safety dispatcher who had a significant loss of speech ability after a stroke.
His position description included essential functions of the position related to speech. This included providing “emergency police, fire and medical services to the public by answering emergency 911 calls and responding with appropriate personnel and equipment” and “Advanced Emergency Medical Dispatch Life Support through pre-arrival instruction to callers;” spending “25% of his time on duties related to caller interrogation, including ‘crisis intervention with distraught emergency callers during high-risk situations’ and ‘dispatch[ing] a variety of emergency equipment.’” Id. Also, “a knowledge requirement for the position was ‘the ability to communicate orally.’” Id.
Does the agency have to provide a reasonable accommodation before removing based upon medical inability to perform?
If the employee does not request a reasonable accommodation or desire to return to work, as in Clemens, the agency is not obligated to provide an accommodation. If the employee does request an accommodation, the Board would consider a reasonable accommodation, so long as one exists that “would enable the appellant to safely and efficiently perform those core duties.” Id.
But, to simply prove the charge of medical inability to perform, “the agency is not required to show that it was unable to reasonably accommodate the appellant by assigning him to a vacant position for which he was qualified; whether it could do so goes to the affirmative defense of disability discrimination or the reasonableness of the penalty.” Id.
What’s the Good News here?
The Board has long held that “removal for physical inability to perform the essential functions of a position promotes the efficiency of the service.” Id. (citing D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 51 (1992)). If you have an employee with medical issues legitimately impacting on their ability to perform their core duties, this removal process is one you should contemplate using. [email protected]