By Deborah Hopkins

At FELTG we love our webinars. As part of each webinar agenda, we take Q & A breaks to answer your questions. Sometime we get questions that come via email after the webinars end, and occasionally we’ll answer those in our newsletter so that all our readers can hopefully learn something. Today is just such a time.

After teaching a recent webinar on disability accommodation, I received the below scenario from a customer. I’ve changed a few of the details and some identifying information to make this a true “hypothetical,” but the essence of the scenario remains intact.

Dear FELTG Brilliant Minds,

I have a case and I was wondering if you could help.

An employee assigned to a job at Office B (about an hour from our main site, Office A) requested reasonable accommodation (RA) two years ago.  At that time, there was space for her to sit in Office A, which she thought would help, and I told her that she could as long as there was space, and that if she was getting her work done she could work from Office A.  I received a call from our RA rep who reviewed the information with me over the phone and said, “That sounds good.” I asked if there was something else needed, for example paperwork/forms, and he said no.

Fast forward one year, we were starting to run out of space at Office A, and I followed up with HR regarding what to do now. The employee’s position belongs in Office B, is stationed there and should be there.  The original RA rep is no longer working here and the employee’s file is incomplete. There aren’t even any medical records (so I understand).

I told the employee she needs to reconnect with the new RA rep, and again, as long as there is space, she could stay at Office A.  It took almost a full year to get things figured out. Finally, the employee was offered a different job at Office A, in a different department.  She declined.

Now I am a week from having new employees start work, and no desks for them to sit at in Office A, where they will be assigned. 

I prepared a memo for the union explaining that the employee needs to return to her duty station [at Office B], that she declined the RA offered [the reassignment to a different department in Office A], and that the interim accommodation [working at Office A] is no longer possible. 

I asked HR to review this plan, and they told me not to send it, because they employee is preparing another RA requesting telework. Her job is not approved for telework.

I think I am going to proceed with memo to union and request that she move back to her assigned duty station at Office B.

I believe this case has been mishandled, I believe she has a real medical need, but the job is not at Office A and the program really needs the position to be posted in Office B.

Any recommendations?

Thanks in advance.

Thanks for the question. This type of situation is fairly common: these types of “unofficial accommodations” work for a while until something needs to change, and there’s no paperwork to look at to know what the problem is or what other accommodations might work. The good news – or bad news, depending on how you look at it – is that background paperwork and medical records are not really necessary in your situation because the employee has been working at Office A and only now is this possibly starting to cause an undue hardship. No paperwork, no problem; it’s time for a reasonable accommodation reassessment anyway.

Just to be sure we’re coming from the same place, though, let’s review the law on reasonable accommodation.

When making an accommodation request, an employee must show that she is a qualified individual with a disability, and that she needs a reasonable accommodation in order to successfully perform the essential functions of her position without causing harm to herself or others. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

If the agency cannot provide a reasonable accommodation without causing an undue hardship, or no accommodation is available for that job, the agency must next consider reassignment as an accommodation by looking for a vacant, funded position for which the employee is qualified, all the way up to the department level (if the agency is part of a larger Department). If no vacant, funded position is available at the employee’s grade level, the agency should look for lower-graded positions for which the employee is qualified.  If the employee refuses to accept the reassignment, the employee in essence waives the reasonable accommodation right.

At first glance it seems like you have your bases covered, as you’ve already offered the employee another position near the physical location in Office A where she currently sits, and she has refused the reassignment. You mentioned that the position the employee currently holds is not telework eligible, and that HR informed you the employee is in the process of requesting telework as accommodation. There’s an aggressive option and a conservative option. The aggressive option is to tell the employee (and the union) that she needs to go back to Office B next week, and not to consider the telework option until you receive it – after all, you have no paperwork that even confirms the employee has a disability. Here’s where you need to be careful, though. The conservative option is to keep things as they are and allow the employee to work in Office A until you receive the telework request that you know is coming any day now.

Whether you go aggressive or conservative, though, remember this: when telework is requested as a reasonable accommodation, the general rules and policies for telework do not apply, and the reasonable accommodation rules take over.

For example, if a new employee requests telework and the agency telework policy states that all employees must work full-time for a year before being telework-eligible, the agency would be correct to refuse the new employee’s request. However, if that new employee requests telework as accommodation for a disability, the agency cannot unilaterally use the telework policy as a reason to deny the request. See Dahlman v. Consumer Product Safety Commission, EEOC No. 0120073190 (2010). If the new employee has a disability and makes that telework request, the agency is obligated to engage in the interactive reasonable accommodation process and must consider whether telework would be a reasonable accommodation for this employee. If it is, the agency must grant telework if no other accommodation is available. See Kubik v. Department of Transportation, EEOC No. 01973801 (2001). If there is another effective accommodation besides telework, though, the agency has a right to choose that accommodation instead.

You mentioned there are no medical records. Now is a good time to ask your employee for new medical documentation, because but even though it sounds as if you have no questions about the employee’s medical situation, you at the very least need to know what the employee’s limitations are so you can consider which accommodation(s) might work.

Once you know the employee’s medical limitations, you’ll need to look at the essential functions of her position to consider whether telework is a reasonable accommodation. In addition, while you say the program needs someone to be present at Office B, the fact that the employee has been working from Office A for several years might work against you. It is not insurmountable; perhaps having the employee work from another location is now causing an undue hardship at Office B; we just want to make sure you have all your bases covered.

So, assuming the employee has a qualified medical condition, you must now consider whether the employee could do her job from home. As we said above, the analysis for telework as a reasonable accommodation varies from case to case, and the fact that the job is not telework-eligible under the agency policy is not good enough. Because this is a request for RA, you need to consider whether any of the employee’s work can be performed from home. See Ellis v. Department of Education, EEOC No. 01A42966 (2006). Perhaps it is not possible for this job to be performed at home; for example, jobs that require patient contact, or access to secure information available only on the agency network, may not be able to be performed from home. See Humphries v. Navy, EEOC No. 0120113552 (2013); Petzer v. Department of Defense, EEOC No. 01A50812 (2006).

Each of these situations is unique and requires participation in the interactive process. Talk with the employee and the RA coordinator to determine whether telework – whether on a permanent or intermittent basis – might be the best option.

I know it’s not an easy answer, but I hope this helps. Good luck! Hopkins@FELTG.com

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