By Meghan Droste, May 20, 2020
As we continue into what feels like the third year of quarantine (but is really just getting to the end of month two, at least in the Washington, DC area), I have a bold prediction for my fellow employment law practitioners: I expect we are going to see an increase in requests for accommodations in the coming months, if you haven’t already. (I know, I know, this isn’t exactly groundbreaking, but I’m sticking to it.) In anticipation of this, it is a good time to go over some of the basics for accommodations.
The first, and possibly most important, is to remember that if an employee is entitled to an accommodation, the agency must provide an effective accommodation. While it is often said that an employee is not entitled to the accommodation of his or her choice, the same is true in a way for agencies — an agency cannot simply offer an accommodation and call it a day. It has an obligation to ensure that the accommodation it provides actually helps the employee perform the essential functions of the position at issue, and if it doesn’t, it needs to find a new accommodation. Without providing an effective accommodation, the agency has not provided a reasonable accommodation.
The Commission’s recent decision in Kristopher M. v. Department of the Treasury, EEOC App. No. 2019001911 (March 3, 2020), provides a good example of this. In this case, the complainant experienced paralysis in one arm and, therefore, requested dictation software to assist with performing his duties. The agency agreed to install Dragon software on his computer and provide training. At this point — before the complainant had the training or attempted to use the software — the reasonable accommodation coordinator considered the case closed. She testified at hearing that simply providing the software, regardless of whether it functioned properly, was sufficient to meet the agency’s obligations. Unfortunately for this complainant, the software was not compatible with several programs he needed to use and he spent two years trying to find a way to make it work. His efforts to make the accommodation actually effective took significant time away from his work. Also, working without an effective accommodation caused pain in his other arm.
Unsurprisingly, the Commission upheld the administrative judge’s decision that the agency had failed to accommodate the complainant during the time that the software did not work. This resulted in the agency having to pay damages, but it also kept an employee from successfully performing his job. If the agency had stayed on top of the request and worked more diligently to address the software issues, it could have avoided the judgment against it, but more importantly it could have had a productive employee focused on his work and not the failure to provide accommodations. So, as you encounter the increase in requests for accommodations, be sure to slow down and make sure the accommodations you provide are effective before considering a request closed and moving on to the next one. Droste@FELTG.com
Note: For more on this, join FELTG June 16-17 for the virtual training event Reasonable Accommodation Spotlight: Challenges and Trends in Federal Agencies.