By William Wiley, August 15, 2018
Oh, the challenges of trying to accommodate a disability. Does the employee really meet the legal definition of disabled? If his job cannot be modified, is there a vacant position he is qualified to perform? What should management do if the employee refuses a reassignment to a vacant position if one is offered? Here at FELTG, we teach days and days of training each year on the answers to these questions. To give you a flavor of our approach, here’s an answer to a question we got recently from a concerned reader:
I am reaching out to you for some advice on a hypothetical case here at my agency.
If a Bargaining Unit employee were to have a valid Reasonable Accommodation claim that no longer allows him to work in his assigned position, and if that employee refuses to take a new assignment at the agency that recognizes their Reasonable Accommodation limitations, what actions can the agency take against such an employee?
Furthermore, if the employee hypothetically announces that he is pursuing a medical retirement, does the agency have to retain him in a paid status until the medical retirement process is completed? Would pending EEO complaints also have any impact on such a hypothetical situation?
All good meaty issues. Here’s our response:
Typical situation; easy answer. This very day propose his removal with the charge being Medical Inability to Perform. Attach to the proposal:
- The medical documentation that shows he cannot perform an essential function of his job,
- A statement from his supervisor that the function is indeed essential and that accommodation in the position is not possible, and
- Evidence from your disability coordinator that there are no vacancies in the agency for which he is qualified medically and professionally which he is willing to accept.
EEOC likes it when we get any declination of the other position(s) in writing, but I’m sure your coordinator knows that. Do not include a Douglas Factor analysis along with the proposal because those factors are not relevant if the employee simply cannot perform one or more essential functions.
Do not delay the removal because he has filed for disability retirement. Two reasons:
- It may be denied, and then you are in a bad situation, and
- By firing him for Medical Inability to Perform you essentially guarantee his application for disability retirement will be granted.
As for pending EEO complaints, they will form a basis for the employee to file a reprisal complaint when you fire him. However, you can’t let that stop you from doing what you need to do. If he is not able to perform work for the agency, you should not keep paying him.
He may file a reprisal complaint, but there will be no merit to it because you will have taken the proper steps to demonstrate that you had a legitimate, non-discriminatory reason for firing him.
Hope this helps.
Best of luck. Wiley@FELTG.com