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Take-it-or-leave-it Telework Offer Raises Accommodation Questions

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By Frank Ferreri, September 10, 2024

Quick facts:

  • An EPA economist had allergies that required him to be away from certain irritants.
  • The agency accommodated him until it moved a heavily perfumed coworker near him.
  • The agency’s offer of 100% telework or nothing led a Circuit Court to question the offer and the interactive process.

Last month, we told you a reasonable accommodation doesn’t mean the employee necessarily gets exactly what they want. Well, a case that came out in the meantime shows that the same holds true for the agency side. In Ali v. Regan, No. 22-5124 (D.C. Cir. Aug. 9, 2024), the D.C. Circuit Court of Appeals found the agency’s offer of telework or nothing as an accommodation left questions regarding the reasonableness of the offer and the sufficiency of the interactive process.

The fragranced coworker

An Environmental Protection Agency economist had severe allergies. The agency was aware and provided a workspace that accommodated the employee’s health needs.

Things changed, however, when the EPA placed a worker known for wearing heavy perfume in the cubicle next to the economist. When the economist asked for a private office or conference room to work in, the EPA offered a different cubicle, which the economist also found “very perfumy.”

The EPA requested and received medical information from the economist regarding his allergies. The agency offered the economist a take-it-or-leave-it accommodation of 100% telework, which the employee had not requested.

The economist asked the agency for other options and asked the coworker to stop wearing fragrances. Neither yielded a solution. Thus, he filed a Rehabilitation Act claim after an ALJ and the EEOC ruled in the EPA’s favor.

The District Court granted summary judgment in favor of the EPA as well, concluding the economist failed to act in good faith during the interactive process because he rejected telework without an explanation.

Rehabilitation Act requirements

The economist appealed to the D.C. Circuit Court of Appeals, which focused on the reasonableness of the accommodation offered.

The Rehab Act’s reasonable accommodation standards are the same as those applied under the Americans with Disabilities Act. Under the ADA, “reasonable accommodations” include making existing facilities usable by people with disabilities and may involve job restructuring, modified scheduling, and reassignment. The EEOC has specified that adjustments to the work environment may be necessary to provide a reasonable accommodation.

In its appendix to the ADA regulations, the EEOC advises that employers should:

  1. Analyze the particular job involved and determine its purpose and essential functions.
  2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee’s disability and how those limitations could be overcome with a reasonable accommodation.
  3. In consultation with the employee to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position.
  4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
More questions

The D.C. Circuit reversed the District Court’s decision, finding it erred in concluding the economist caused a breakdown in the interactive process. According to the D.C. Circuit, it was up to a jury to decide the disputed material facts regarding the reasonableness of the EPA’s proposed final accommodation, which was offered without first meeting with the economist to discuss accommodation options.

The D.C. Circuit noted the economist provided all of the information that the agency requested of him, and that information is what the agency used to formulate its accommodation offer. The D.C. Circuit also found questions regarding whether the economist did, in fact, reject the EPA’s offer.

“The record does not indicate that [the] EPA spoke with [the economist] at all about an appropriate accommodation between the time it determined he qualified for one and its proffer of the 100% telework accommodation,” the D.C. Circuit wrote. “Instead, [the] EPA presented its offer as an apparent fait accompli, without ever discussing with [the economist] the effectiveness or reasonableness of 100% telework.”

The D.C. Circuit also pointed out that the economist tried to re-engage the agency in discussion about alternative accommodations, following up once a week for three weeks on his request for a private working space with no evidence that the EPA responded to any of the follow-ups other than an email stating “you have been offered a reasonable accommodation of 100% telework and have declined the offer.”

Was the offer reasonable?

The D.C. Circuit also found triable issues as to whether the all-or-nothing telework offer was reasonable, given evidence that the economist could “not print things” at home due to allergic reactions he experienced “to emissions from printers” and that he lacked an office space “set up.”

While telework is often a successful option, especially in a post-COVID world, the D.C. Circuit pointed out that assumptions can be risky, and some employees may not be suited for separation from the in-person environment.

“Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability,” the D.C. Circuit reasoned. “In the latter case, the factual record would have to justify the reasonableness of such forced segregation, such as by showing the absence of an integrative reasonable accommodation.”

The D.C. Circuit sent the decision back to the District Court.

A dissenting judge pointed out that, five years earlier, the economist worked at home temporarily as a reasonable accommodation. That experience, along with a lack of evidence on how working at home would hurt the economist’s career, supported the EPA’s position that telework was a reasonable accommodation.

As the court phrased it, requiring an employee who has successfully worked in the office for years to leave the workplace permanently as the sole means for accommodating a disability – without first discussing it with the employee or exploring integrative alternatives – risks running afoul of the Rehabilitation Act. It is still up to the employee to show the feasibility of some other option. However, just because telework is an excellent accommodation in many cases does not mean it will be reasonable in every case. [email protected]

Related training:

Accommodations: Reasonable Doesn’t Always Mean Preferred

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By Frank Ferreri, August 12, 2024

Quick facts:

  • An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
  • The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
  • The court found the agency engaged in a good-faith interactive process for Rehabilitation Act

Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.

However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.

What happened in Uygur?

A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.

Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.

The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.

The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.

The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.

To establish a failure to accommodate under the Rehabilitation Act, an employee must show:

  1. She had a disability, and the agency knew it;
  2. She requested an accommodation or assistance;
  3. The agency did not make a good-faith effort to assist; and
  4. She could have been reasonably accommodated.

In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.

The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:

  1. Allowing the attorney to attend the DC conference in person;
  2. Providing the attorney with three assistive computer programs; and
  3. Facilitating training on the computer programs, “albeit virtually as opposed to in person.”

The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.

“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.

In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.

As a result, the court dismissed the employee’s Rehabilitation Act claim.

The Lesson

A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job.  The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.

It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. [email protected]

Related training:

 

How Long is Too Long for Delay on Reasonable Accommodations?

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By Frank Ferreri, July 17, 2024

They say patience is a virtue. Does that mean the interactive process on an employee’s reasonable accommodation can go at a snail’s pace?

Not according to the court in Pelton v. DeJoy, No. 19-1766 (D.D.C. May 3, 2024), which indicated a four-year timeline between request and accommodation would be a delay too long to withstand a failure-to-accommodate challenge under the Rehabilitation Act.

The case involved an attorney hired by the U.S. Postal Service in 2013. Her disabilities included a spinal cord injury, cervical fusions, bilateral thoracic outlet syndrome, nerve damage, depression, and a genetic clotting disorder. During her time with the USPS, the attorney was diagnosed with or treated for peripheral nerve entrapment, carpal tunnel syndrome, tendon and ligament tears, tremors, anxiety, depression, chronic insomnia, and weight gain.

The attorney said she requested an ergonomic chair, desk, keyboard, and mouse during her first week on the job. She presented these requests to the employee who conducted her orientation, however, was told that there was no room in the budget. Instead, she was shown “a room full of broken office equipment” from which she was expected to select something that would work for her.

In 2014, the attorney received an ergonomic keyboard and mouse. In 2017, she received an ergonomic chair and desk.

Because of the failure of the USPS to accommodate her disabilities, the attorney allegedly developed tendon and ligament tears as well as pain.

In 2017, the attorney’s responsibilities changed, requiring her to perform additional typing-intensive work. The attorney’s doctor said she was to limit typing to only 20 minutes per hour and no more than three hours per day. Upon receiving this information, the USPS referred the attorney to the USPS’s reasonable accommodations committee, which began the interactive process.

Along with the ergonomic chair and desk, the attorney also received voice-dictation software.

Nonetheless, the attorney sought and received Family and Medical Leave Act leave before suing under the Rehabilitation Act for a failure to accommodate.

To establish a failure to accommodate claim, an employee must show:

  1. She had a disability within the meaning of the Rehabilitation Act.
  2. Her employer had notice of her disability,
  3. She was able to perform the essential functions with accommodation and
  4. Her employer denied her request for a reasonable accommodation.

In the attorney’s case, only the fourth factor was in dispute. She alleged that the USPS unreasonably delayed in granting her requested accommodations. The court sided with the USPS on the keyboard and mouse, reduced typing time, and voice-dictation software. However, it found triable issues regarding the attorney’s request for an ergonomic chair and desk.

Although it was disputed as to whether the attorney asked for the chair and desk as early as 2013, the court found that it was a question for the factfinder to decide.

“A reasonable jury could find that she requested an ergonomic chair and desk in 2013, that her request went unfulfilled for four years, and that such delay was unreasonable,” the court wrote.

The court noted that case law hadn’t set a bright line on how long is too long but found guidance from the following:

Ward v. McDonald, 762 F.3d 24 (D.D.C. 2014). In a footnote, the Ward court noted that the three months that passed between when the employee made her request and when she resigned was “no long delay” and rebuked the employee for cutting the interactive process short and “blam[ing] her employer for not immediately granting her specific request.”

Faison v. Vance-Cooks, 896 F. Supp. 2d 37 (D.D.C. 2012). The agency did not offer an explanation for a more-than-three-year delay in providing an accommodation other than to say that it was not “in any way intentional.” The court found the agency didn’t reasonably accommodate the employee’s need for voice-activated computer equipment.

Mogenhan v. Napolitano, 613 F.3d 1162 (D.C. Cir. 2010). This case suggested a three-year delay would be actionable, but noted that the employee in the case, who had sinus problems, didn’t give a date for when she attempted to start the interactive process. She didn’t have a basis to argue that the interactive process took so long as to constitute a failure to accommodate.

While the attorney’s case and the precedent cases don’t necessarily lend themselves to a hard-and-fast rule, common sense notions of “reasonable” should prevail. There are also a number of EEOC cases that discuss accommodation delays. If the interactive process is shifting from a months-long process to a years-long ordeal, it’s likely going too slow, and the agency may find itself in failure-to-accommodate troubles. [email protected]

Training on this Topic:

 

 

 

After Going Through Legal Hoops, Fed’s Worker Comp Case Rebounds

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By Frank Ferreri, June 10, 2024

Anyone who’s hooped it up on the hardwood or the playgrounds for years and years has probably felt the aches and pains that come with being a middle-aged baller.

For a 57-year-old airway transportation systems specialist, however, a pesky basketball injury threatened his Federal workers’ compensation case in C.B. and Department of Transportation, Federal Aviation Administration, No. 21-0323 (ECAB April 18, 2024). Nevertheless, his use of  the stairs while traveling for work offered backing for his claim.

The specialist filed a traumatic injury claim, alleging he sustained left knee and ankle injuries while on temporary duty. On the CA-1, the specialist’s supervisor acknowledged the injury happened in the specialist’s performance of duty.

While being treated for the injury, the specialist said he injured his left ankle and knee the prior day while playing basketball, leading the agency to controvert the claim on the basis that the specialist was not in the performance of duty at the time of the injury.

The specialist submitted his doctor’s report, which stated he twisted his left knee and ankle while exercising, had undergone a left knee arthroscopy meniscectomy five or six years prior, and was asymptomatic until the day at issue.

The specialist submitted a statement that he injured his left knee and ankle while climbing six flights of stairs to his room from the hotel exercise facility early in the day and that he reinjured his left knee and ankle while shooting hoops in a fitness center later that evening. The specialist related that he was on travel status for training at the time of the injury.

In response, the agency said the specialist’s job was not associated with any physical fitness or medical requirements. Also, he was not participating in a supported or sponsored after-work activity at the time of the injury.

OWCP denied the claim. A representative of OWCP’s Branch of Hearings and Review affirmed the decision over the specialist’s argument that he was a rescue climber, had to maintain a level of physical fitness, and the agency was aware of it. Thus, the specialist appealed to the Employees’ Compensation Appeals Board.

The Applicable Law

The Federal Employees’ Compensation Act covers an employee 24 hours a day when the employee is on travel duty status and engaged in activities essential or incidental to such duties. The “general rule” regarding coverage of employees on travel duty status or temporary-duty assignments is that an employee whose work entails travel away from the employer’s premises is considered to be within the course of his employment continuously during the trip, except where there is a “distinct departure” on a personal errand. For an injury to be “in the course of employment,” ECAB has held that it must occur:

  • At a time when the employee may reasonably be said to be engaged in the agency’s business;
  • At a place where the employee may reasonably be expected to be in connection with his employment; and
  • While the employee was reasonably fulfilling the duties of his employment or engaged in something incidental thereto.

ECAB found that the specialist met his burden of proof to establish a traumatic incident in the performance of duty on the day in issue. ECAB noted:

  • The specialist injured himself on the stairs in his hotel.
  • The specialist’s activity at the hotel was reasonably incidental to the duties of the temporary assignment contemplated by the agency.

Because OWCP didn’t previously reach the question of whether the specialist sustained an injury causally related to the employment incident, ECAB sent the case back for a new decision.

The Takeaway

ECAB emphasized FECA covers an employee 24 hours a day when the employee is on TDY status, with that coverage disappearing when the employee engages in something that is not “reasonably incidental” to the duties of the temporary assignment.

In this case, going up and down stairs at a hotel was reasonably incidental to the specialist’s travel status due to agency-required training. Had it strictly been a basketball injury, it’s difficult to say how ECAB would have come down, and it would take more consideration of the evidence and applicable law to flesh out that case.

However, the “reasonably incidental” part of the ECAB’s conclusion in this case makes sense and provides a guideline to work with it: If an injury happens and that injury goes along with the employee’s assignment at hand, it could make for an easy layup of a workers’ compensation claim. [email protected]

ECAB Ruling: Specialist Fell in Performance of Duty on ‘Premises’

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By Frank Ferreri, May 13, 2024

The Employees’ Compensation Appeals Board could have helped me  and, more importantly, FELTG newsletter readers if it had published a recent decision ahead of the publication of the April issue’s “going & coming” rule story.

Not to worry, though, here’s what happened in A.S. and Department of Homeland Security, Transportation Safety Administration, No. 21–1143 (ECAB March 21, 2024), a premises rule case involving a worker’s stumble in an employee parking lot on his way in to work.

A TSA specialist filed a CA-1, alleging he fractured his left arm in the performance of duty. According to the specialist, he tripped and fell in the lot on his way to work. The agency controverted the claim, asserting the specialist was injured before his shift began. OWCP agreed and denied the claim based on its analysis that the parking garage was not part of the agency’s premises.

Under the Federal Employees’ Compensation Act (FECA), the injury must be sustained in the performance of duty, and any disability or medical condition for which compensation is claimed must be causally related to the employment injury.

If an employee has fixed hours and place of work, injuries that occur on the employer’s premises while going to or coming from work, before or after working hours, or at lunchtime are compensable. This is the premises rule. It is applied to cases where it is affirmatively demonstrated that the employing establishment owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees.

Even if an agency does not own or control the place of injury, the place may still be considered part of the “premises.” ECAB and courts will make the determination on a case-by-case basis.

ECAB uses these factors to determine if a parking area is part of an agency’s “premises:”

  • Whether the agency contracted for exclusive use of the parking area for its employees.
  • Whether parking spaces were assigned by the agency to employees.
  • Whether the parking areas were checked for unauthorized cars.
  • Whether parking was provided without cost to employees.
  • Whether the public was permitted to use the garage.
  • Whether other parking was available to employees.

The specialist met his burden of proof to establish the trip and fall occurred in the performance of duty, according to ECAB. It found the lot was the agency’s “constructive premises” because:

  • The agency arranged for the use of the lot and provided subsidies for its employees to park there.
  • The lot was restricted to employees. The public did not have access.
  • The specialist was responsible for displaying a parking pass, and the area was routinely monitored for compliance.
  • The agency paid a monthly fee for the specialist to park in the lot, and he was entitled to one unreserved space there.
  • The CBA confirmed the agency had determined that providing full parking subsidies for its bargaining unit employees at their airport duty station was necessary to attract and retain qualified security screening personnel and to avoid significant impairment of its operating efficiency at the nation’s airports.

ECAB also explained that the specialist was engaged in activities that may be described as incidental to his employment because he had fixed hours and a fixed place of employment. The fall occurred at 12:35 pm in advance of his 1 pm shift.

ECAB sent the case back to OWCP to analyze and develop the medical evidence in determining what, if any, benefits were due to the specialist.

The takeaway: To get to his job, the specialist parked where the agency designated for him to park and paid for him to do so. If it’s something that the agency requires or makes available so that a worker can get to her job, chances are it will be within the scope of the “premises rule.” [email protected]

 

Should I Stay or Should I Go? Either Way, Workers’ Comp Rule Applies

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By Frank Ferreri, April 15, 2024

For those of us who don’t work remotely 100 percent of the time, getting to and from work, with possible stops along the way, comes with the risk of getting injured.

To handle the “what ifs” in the world of going to and coming home from work, workers’ compensation law across the country, and in the Federal government, has developed what’s known as the “going and coming” rule, which is also called the “coming and going” rule, depending on which judge you read.

The Employees’ Compensation Appeals Board (ECAB), following the lead of state and Federal courts around the country, has maintained that for employees having fixed hours and a place of work, injuries occurring off premises while going to and coming from work before or after work hours or during a lunch break are not compensable. However, there are exceptions, some of which we explore below.

Special Errand Rule

An employee who has identifiable time and space limits on her employment makes an off-premises journey that would normally not be covered under the going and coming rule. However, if the trouble and time of making the journey or the special inconvenience, hazard, or urgency of making it in the particular circumstances is sufficiently substantial, it can be viewed as an integral part of the service itself. See A. Larson, The Law of Workers’ Compensation § 13.00 (2007).

Case example

N.J. and Department of Justice, Federal Bureau of Prisons Metropolitan Detention Center, No. 20-1148 (ECAB 2021). A corrections officer filed a CA-1, alleging she was injured in a motor vehicle accident while in the performance of duty. She was driving to firearms training when a large tree branch fell through the windshield and roof of her vehicle just before she was rear-ended by a speeding car.

OWCP denied her claim, finding that the officer’s injury did not occur during the course of her employment. ECAB disagreed, noting the special errand exception was met because:

  • She was expected to perform her official duties on requalifying with her required weapons.
  • A daily assignment sheet demonstrated that she was assigned to perform firearms training on the day of the employment incident.
  • An assistant human resources manager indicated that the officer’s firearms training was a yearly requirement associated with her employment duties.

Rural Carrier Exception

When an employee is required to bring along her own car, truck, or motorcycle for use during the working day, the trip to and from work is, by that fact alone, considered within the course of employment. See Lex K. Larson, Larson’s Workers’ Compensation, § 15.05 (2013). Rural carriers may use their own vehicles to deliver their routes, which is a benefit to the agency. The carriers may be deemed in the performance of their duties when they are driving their vehicles to and from their route.

Case example

J.C. and U.S. Postal Service, Kentuckiana District, No. 17-0995 (ECAB 2017). A rural carrier, who was working as a supervisor of customer services, alleged she injured her shoulders and neck when she was involved in a motor vehicle accident around 7:40 a.m. on the day in issue. OWCP decided the carrier was not in the performance of duty when injured.

On appeal, ECAB agreed. The board noted the carrier was not driving her vehicle to work as a rural carrier but for her role as an acting supervisor. “Regardless of whether appellant used her private vehicle while acting as a rural carrier, she was not scheduled to perform the task of delivering mail,” ECAB wrote. “Rather, she was driving to the Benton, Kentucky, post office where she had been an acting supervisor for four months.”

Workers on Travel Status

FECA covers an employee 24 hours a day when the employee is on travel status and engaged in activities essential or incidental to such duties.

Case example

J.N. and Department of Homeland Security, Transportation Security Administration, No. 14-1764 (ECAB 2015). An air marshal alleged he sustained a cervical spine fracture, a collapsed right lung, a concussion, numerous lacerations, high blood loss, and extensive bruising when he was involved in a motor vehicle accident while en route from his home to an offsite training class. The air marshal alleged he was on the clock and that by reporting directly to the training location, he avoided three hours of overtime pay status for the agency.

OWCP disagreed, finding the air marshal was not in the performance of duty. ECAB affirmed. According to the Board, the air marshal was permitted to drive his personal vehicle to the training session for personal convenience, and precedent cases established that air marshals are not in travel status while commuting to work.

“His travel to attend training was no more for the benefit of the employer than any other worker’s commute,” ECAB wrote. “Appellant’s decision to travel to the training in his personal vehicle was by his own choice, not by any mandate of the employer.” 

Premises Rule

This exception applies just about everywhere in U.S. workers’ compensation law and covers situations where an employee isn’t on the clock or on the job yet but experiences an injury on the employer’s premises. A common locus for premises rule cases is a parking lot, and the premises doctrine is applied to those cases where it is affirmatively demonstrated that the employer owned, maintained, or controlled the parking facility, used the facility with the owner’s special permission, or provided parking for its employees. Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

Case example

Hartman and Social Security Administration, Office of Hearings and Appeals, No. 01-749 (ECAB 2004). A legal assistant was in the underground parking garage after a power outage led to all employees being released from work. She fell over a bicycle rack and injured her hands, shoulders, knees, legs, back, and neck. OWCP applied the going and coming rule to reject the assistant’s claim. It noted her injury did not fall within an exception to the rule that injuries sustained by employees having fixed hours and places of work while going to or coming from the job are not compensable.

ECAB noted the premises rule has a close relative — the “special hazard” rule. However, it didn’t apply here because “the hazard encountered by appellant was not an exceptional or uncommon hazard.” ECAB likened the darkened parking garage to dangers that arose in other cases in which a special hazard exception did not apply, including:

  • An assault on the streets while going to work. Jimmie D. Harris, Sr., 44 ECAB 997 (1993).
  • Wax on a public plaza immediately outside the only exit. Sallie B. Wynecoff, 37 ECAB 728 (1986).
  • A traffic accident resulting from a backup for a security checkpoint. Bettie J. Broadway, 44 ECAB 265 (1992).
  • An icy sidewalk. Denise A. Curry, 51 ECAB 158 (1999).

In each of these cases, ECAB found the hazards were common to all travelers.

Proximity Exception

Treated as a subcategory of the premises rule and dependent on the special hazard exception, the proximity exception stands for the principle that the course of employment should extend to an injury that occurs at a point where the employee is within the range of dangers associated with the employment. There must be a special hazard before the proximity rule kicks in.

Case example

D.C. and U.S. Postal Service, Post Office, No. 08-1782 (ECAB 2009). A custodian injured his right wrist when he “fell on ice at a curb” immediately following his work shift. OWCP rejected the claim explaining that, although the USPS was responsible under local law for keeping the sidewalk clear of ice and snow, the sidewalk was not part of the agency’s premises.

ECAB agreed because the sidewalk in question was a public sidewalk. The custodian did not present evidence the sidewalk was used exclusively or principally by agency employees for the convenience of the agency. There are other exceptions that are generally recognized as well, including in the following scenarios:

  1. Where employment requires the employee to travel on the highways.
  2. Where the employer contracts to and does furnish transportation to and from work.
  3. Where the employee is subject to emergency calls, as in the case of a firefighter.
  4. Where the employee uses the highway to do something incidental to her employment with the knowledge and approval of the employer.
  5. Where the employee is required to travel during a curfew established by local, municipal, or state authorities because of civil disturbances or other reasons.

What does all this mean for an agency? It’s hard to predict how a case will go, and most results depend on case-specific facts. However, as a basic concept, the more an employee’s coming or going is to do something for the agency rather than herself, the more likely it will be FECA-covered. [email protected]

When Sexual Harassment Turns Into a Workers’ Comp Claim

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By Frank Ferreri, March 11, 2024

If you read our pre-Valentine’s Day piece on sexual harassment, you are aware the wrong kinds of advances can lead to EEO headaches. But did you know sexual harassment may also lead to a compensable injury under the Federal Employees’ Compensation Act (FECA), which covers emotional conditions causally related to compensable factors of an employee’s Federal employment?

However, as the following cases show, while a claim is easy to file, it can be difficult for claimants to prevail.

Under Employees’ Compensation Appeals Board (ECAB or the Board) cases, such as Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004), an employee can establish she sustained an emotional condition in the performance of duty by submitting all of the following:

  1. Factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to her condition.
  2. Rationalized medical evidence establishing that she has an emotional or psychiatric disorder.
  3. Rationalized medical opinion evidence establishing that the identified compensable employment factors are causally related to her emotional condition.

“Rationalized medical opinion evidence” refers to medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors and must be based on a complete factual and medical background of the claimant, be one of reasonable medical certainty, and be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by appellant.

To understand what the ECAB analyzes in claims related to alleged sexual harassment, consider the following decisions.

Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004)

A postal clerk alleged she sustained an emotional condition causally related to harassment in the form of a supervisor sitting on a ledge in front of her and propping his leg up. The supervisor allegedly stood “very close” or walked up behind her. The clerk also alleged the postmaster discussed one of the clerk’s personal relationships. According to the clerk, these actions caused her stress and aggravation of a preexisting condition, which was an internal carotid artery aneurysm.

ECAB’s ruling: The clerk failed to implicate any compensable factors of her employment in the development of her alleged emotional conditions. There was no evidence that anyone heard the conversation about the clerk’s personal relationship, and when the supervisor learned his ledge-sitting and following made the clerk uncomfortable, he ceased the behavior. ECAB concluded the clerk did not establish compensable factors of employment caused her emotional condition.

Donahue and Department of the Army, No. 01-1006 (ECAB Jan. 9, 2002)

A supply technician alleged a supervisor would on an “almost daily” basis “grab and slap her buttocks and make sexual innuendoes with regard to having sex.” This went on, according to the technician, from 1993 until 1997. This supervisor on one occasion came to the technician’s house at 11 p.m. on the pretext of asking about her husband, who was in the hospital, and made sexual advances that amounted to a sexual assault.

ECAB’s ruling: The technician did not bring enough evidence to the table to support her claim. Although the technician alleged she was subjected to sexual harassment, she continued to work at her job and made no allegations regarding sexual harassment until she filed her claim in August 1998 — nearly five years after the alleged sexual assault occurred. ECAB dismissed the case, finding the technician did not meet her burden of proof in establishing that she sustained an emotional condition in the performance of duty.

Lofti and Department of Health & Human Services, Health Care Financing Administration, No. 95-2756 (ECAB Sept. 19, 1997)

A health insurance specialist alleged she sustained anxiety, chest pains, heart palpitations, insomnia, pneumonia, myalgia, indigestion, laryngitis, and headaches due to sexual harassment by a coworker. According to the specialist, the coworker sent her cards and letters for a year, made lewd remarks, and would visit her cubicle in a tearful and angry state. The specialist also alleged there were “physical incidents in which he forcibly tried to kiss” her.

ECAB’s ruling: The Office of Workers’ Compensation Programs, which ruled against the employee, erred in finding that harassment by coworkers can only be considered a compensable employment factor if the employing establishment is aware of such harassment and fails to intervene. On the contrary, ECAB found evidence that the specialist sustained an emotional condition and several physical ailments due to sexual harassment by a coworker. In particular, the specialist presented evidence that included a detailed factual statement and corroborating statements from the employing establishment demonstrating that the described incidents occurred as alleged. As a result, ECAB sent the case back to OWCP.

An important lesson comes out of the Lofti case: Unlike in the Title VII context, whether or not a sexual harassment charge turns into a compensable workers’ compensation claim does not depend on whether the agency took appropriate steps in response to the harassment. Instead, it depends on whether the employee suffered an injury that was causally related to her job.

So, what can agencies do? A good place to start is stressing as much as possible that sexual harassment has no place in the Federal workplace. Even if it seems like “just a joke,” the job is no place for that kind of humor, which can literally cause an injury. [email protected]

 

Valentine’s Day Advances Should Not Be in the Cards

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A generalized recognition of Valentine’s Day could be a nice way to inject some brightness into wintertime at work, but in conversation heart language, “say yes” to Title VII compliance by ensuring that charges of sexual harassment are addressed promptly and thoroughly. Learn more.

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5 ECAB Decisions Reveal How Workers’ Comp Overpayment Happens

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By Frank Ferreri, Jan. 17, 2024

For a variety of reasons, some benign and others more sinister, Federal employees may wind up on the receiving end of a workers’ compensation overpayment. What happens when the Employees’ Compensation Appeals Board decides that a Federal worker received a workers’ compensation overpayment?

Under the Federal Employees’ Compensation Act, and particularly Section 8129, when an overpayment has been made to a Federal employee receiving workers’ compensation benefits, an adjustment is made by decreasing later payments to which the employee is entitled. If the worker dies before the adjustment is completed, an adjustment will be made by decreasing death benefits.

Recovery isn’t always required. Section 8129 also provides that adjustment or recovery may not be made when both of the following are true:

  1. Incorrect payment has been made to a worker “who is without fault”; and
  2. Adjustment or recovery would defeat the purpose of FECA or would be against “equity and good conscience.”

The following cases show the remedial steps ECAB takes in cases of overpayment.

J.B. and Department of the Army, Combat Developments Experimentation Center, No. 22-1027 ECAB (Nov. 16, 2023)

Alleged overpayment amount: $169,429.15

How it happened: An operations research analyst received wage-loss compensation for permanent aggravation of major depression and prolonged depressive reaction. For roughly 22 years after being divorced, the worker claimed that he was married, that his spouse did not live with him, and that he made regular payments for her support, and thus, he received an augmented rate of compensation. The worker claimed that he was unaware that his marriage had been dissolved and that his signature on the document associated with the dissolution was a forgery.

ECAB decision: The worker received the overpayment because:

  1. Under FECA, a former spouse does not come within the meaning of the term “wife.”
  2. There was no evidence of any dependent children at the time of the divorce.
  3. The worker was not required to pay spousal support.

Thus, from Nov. 20, 1998, through April 25, 2020, the worker received $1,390,519.32 in FECA compensation benefits at the augmented rate but was entitled to only $1,221,090.17 at the basic rate.

Watkins and U.S. Postal Service, 28 ECAB 632 (1977)

Alleged overpayment amount: $16,150.08

How it happened: A letter carrier who sustained an injury to his right knee received compensation for temporary total disability benefits and concurrently received retirement benefits from the Civil Service Commission. The worker didn’t take steps to stop his receipt of dual benefits.

ECAB decision: The worker was given the chance to elect between workers’ compensation and civil service retirement benefits for the period from Mar. 1, 1975, through Jan. 5, 1977. Were he to elect retirement benefits, the overpayment amount would be the amount that was paid in workers’ compensation, which was $16,150.08. If he decided on workers’ compensation benefits, the overpayment would be the difference between the amount the worker was paid ($16,150.08) and the amount to which he would be determined to be entitled. In that scenario, the worker would also have received an overpayment under the retirement system that he would have to repay.

 Smith and Department of Transportation, Federal Railroad Administration, 48 ECAB 132 (1996)

Alleged overpayment amount: $216,105.25

How it happened: A Federal railroad worker received workers’ compensation benefits for a right knee injury he later admitted did not occur as he described in his claim. Instead, the worker “just wanted to get a couple months off to work on [his] home.” Following that admission, the worker argued that when he made the statement about just wanting some time off to fix up the house he was “mentally incompetent.”

ECAB decision: The incompetence argument fell flat, and ECAB found that the worker knowingly made an incorrect statement that he had injured his knee at work, and accepted payments he knew were incorrect.

 C.H. and Department of The Navy, Mare Island Naval Shipyard, No. 08-2426 (ECAB Aug. 14, 2009)

Alleged overpayment amount: $8,882.61

How it happened: An employee sustained a right knee injury from getting in and out of tanks and walking up and down steps on a deck. In addition to FECA benefits, the carrier also received Social Security benefits as part of his Federal Employee Retirement System retirement package.

 ECAB decision: Per FECA Bulletin No. 97-9, the portion of the Social Security benefit the worker earned as a Federal employee was part of the FERS retirement package, and the receipt of FECA benefits and Federal retirement concurrently was a prohibited dual benefit.  ECAB ruled that repayment of the overpayment could be accomplished by withholding $550 per month from his continuing compensation.

 Borquez and Department of the Air Force, Davis-Monthan Air Force Base, No. 03-1989  (June 10, 2004)

Alleged overpayment amount: $85,950.76

How it happened: An Air Force employee pleaded guilty to mail fraud to obtain workers’ compensation benefits. On that basis, ECAB determined that the worker received an overpayment.

ECAB decision: The overpayment amount was initially calculated at $104,367.25 before deductions of $9,181.07 for the amount of compensation the worker was owed but did not receive for a six-month period and $5,600, which was the amount the worker paid in court-ordered restitution. ECAB upheld the $85,950.76 calculation of the worker’s overpayment of FECA benefits.

The lesson: Honesty is the best policy. If you received too much in workers’ compensation benefits, report the overpayment. Anyone who tries to secure additional benefits by wrongdoing will eventually face the wrath of OWCP, ECAB, and, possibly, criminal law. [email protected]

Spread Cheer Wisely and Avoid Discrimination by Decoration

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By Frank Ferreri, December 4, 2023

It’s that time of year again. Office workers across the world, including the Federal government, will soon bring merriment to their cubicles, quads, and corridors with lights, snowpersons, trees, and other indicia of “the season.”

While some Yuletide cheer is appropriate, welcome, and legally acceptable around the holidays, getting too zealous in workplace decorations can earn more than a lump of Title VII coal from the EEOC or a court.

In terms of what the law requires, whether harassment on the basis of religion is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a case of hostile environment harassment on the basis of religion, as detailed in Humphrey v. USPS, EEOC App. No. 01965238 (Oct. 16, 1998), a complainant must show all of the following:

  1. She was a member of a statutorily protected class (here, religion).
  2. She was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class.
  3. The harassment complained of was based on the statutorily protected class.
  4. The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.

These EEOC and court decisions provide guidance to ensure the holidays are merry, bright, and nondiscriminatory.

Decision: Sturman v. FAA, EEOC App. No. 0120072361 (Oct. 31, 2007).

Facts: An air traffic control specialist claimed he was discriminated against on the basis of religion (Jewish) when a facility manager allowed her staff to hang Christmas decorations during business hours but did not hang Chanukah decorations. Staff also downloaded Christmas songs to her computer during business hours. The specialist submitted pictures of a workplace with a Christmas tree, a Christmas wreath, garland, lights, and other Christmas holiday decorations.

Ruling/analysis: The specialist’s case “failed” on the question of whether the atmosphere at work had the purpose or effect of unreasonably interfering with the work environment.

The EEOC noted the decorations — a Christmas tree, wreath, icicle lights, garland, and Santa Claus — were “predominantly secular” in nature. Although the tree “seemed to have had a number of ornaments which featured an angel,” the overall display was not religious, since “there was not a nativity scene, nor was there any other decoration which was religious in nature.”

The EEOC also noted that although Christmas trees are commonly associated with the Christian holiday of Christmas, “it has become a prevalent practice for many people and businesses to decorate evergreen trees, and feature lights and garland, as an expression of ‘the winter holiday spirit’ in a very secular sense.”

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Decision: Garry H. v. FAA, EEOC App. No. 0120181570 (Sept. 24, 2019).

Facts: In one of six sections of a control room, an air traffic control specialist’s coworker put up a sign that read “Happy Hanukkah,” a silver and blue garland along with stars of David on the lights; a sign that read “Happy Kwanza” [sic]; and a sign that said, “Santa is coming in [x number] of days,” along with Christmas lights and wrapping paper.

The specialist claimed the agency discriminated against him on the basis of religion (Jewish) when all non-Christmas decorations were taken down while Christmas decorations throughout the facility stayed up.

Ruling/analysis: The specialist did not prove the agency subjected him to discrimination. The decorations the specialist complained about were secular decorations that were permitted throughout the Federal government and work environment.

“The record shows the holiday decorations … consisted of a sign that said, ‘Santa Clause [sic] is coming in [x number] of days,’ Christmas lights and wrapping paper,” the EEOC wrote. “According to the U.S. Supreme Court, such holiday decorations amount to secular symbols rather than an expression of a religion and displaying them in the federal workplace does not violate the establishment clause of the First Amendment.”

The EEOC also explained that Tile VII does not require a public or private employer to remove holiday decorations or add holiday decorations associated with other religions.

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Decision: Ian S. v. IRS, EEOC App. No. 0120160622 (Apr. 27, 2018).

Facts: A senior individual taxpayer advisory specialist alleged that the agency discriminated against him on the basis of religion (Jehovah’s Witness) when his manager would not allow him to eat at his desk so that he could avoid exposure to holiday decorations in the break room, where a tablecloth and two poinsettias offended his religious beliefs.

Ruling/analysis: The holiday decorations at issue amounted to secular symbols rather than an expression of a religion, and displaying them in the federal workplace did not violate the establishment clause of the First Amendment.

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Decision: Moore v. AAFES, EEOC App. No. 01933575 (Mar. 16, 1994).

Facts: A warehouse worker alleged he was discriminated against on the basis of religion (non-Christian) when Christmas music was played over the public address system where he worked.

Ruling/analysis: Even if the worker could prove that there was a deliberate intent on the part of the agency to harass him by playing Christmas music, it still would not rise to the level necessary to prove discrimination. This was because the harassing music complained of was played only on two days and for relatively brief periods of time.

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Decision: Lurensky v. FERC, 167 F. Supp. 3d 1 (D.D.C. 2016).

Facts: The employee, who was a Jewish woman in her 60s, alleged the agency subjected her to disability discrimination when it denied the employee’s request to remove a Christmas garland off of a handrail in the lobby of the building where she worked.

Ruling/analysis: “Though a Christmas garland may have annoyed or inconvenienced the plaintiff, this allegation … fails to state a claim for discrimination or retaliation because it does not amount to an adverse employment action,” the court reasoned, since the garland did not affect the terms of employment and the decision to leave it in place was “not sufficiently adverse to chill a complainant’s exercise of her rights.”

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Decision: Plotkin v. Shalala, 88 F. Supp. 2d 1 (D.D.C. 2000).

Facts: An HHS scientist, who was Jewish, complained about the display of “Christian Christmas decorations” in the workplace prior to being terminated.

Ruling/analysis: The employee’s concession that she was dismissed because of her alleged conduct and that her employer’s decision to terminate her employment was made before she voiced her concerns about the office Christmas decorations “effectively dispose[d] of” her claim of religious discrimination.

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Decision: Spohn v. DVA, 2000 WL 1459981 (S.D.N.Y. 2000).

Facts: A VA employee, who was Catholic, alleged the agency violated his rights by displaying symbols of the Jewish religion, but not the Christian religion, in public areas of the hospital during two December holiday seasons. It appeared that “menorahs were displayed along with toy soldiers, Christmas trees, and Santa Clauses,” which the employee considered secular symbols, as well as “posters celebrating Kwanza” [sic] and “signs mentioning Muslim prayer services.”

The employee sought to have the court order a nativity be added to the VA’s decorations.

Ruling/analysis: Because the employee did not allege specific facts about the holiday displays, the claim was dismissed. However, along the way, the court noted that holiday displays including religious as well as secular symbols of the holiday season have been upheld but displays of religious symbols standing alone in locations associated with core governmental functions have been struck down.

The court also explained that while the agency could not be prohibited from displaying a creche in addition to a menorah in an “appropriate setting,” there was no authority for the proposition that such a pairing was constitutionally required.

“This Court cannot order the Center to include a creche in its holiday display,” the court pointed out. In addition, citing County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), the court highlighted that “Chanukah, like Christmas, is a cultural event as well as a religious holiday” in that “[j]ust as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and ‘as a cultural or national event, rather than as a specifically religious event.’”

What’s the takeaway from cases like these? A workplace that stays secular and celebrates the “American cultural” version of the holidays in its decorations will keep the season jolly and away from Title VII troubles. But for everyone’s sake, leave Mariah Carey in the earbuds. [email protected]