Reasonable Accommodation May Lead to Unexpected Consequences
This article is not intended to provide detailed instructions in applying for Reasonable Accommodation. Each circumstance and set of facts is unique and instructions are specific in that regard. Instead, this article is intended to help employees avoid risking their jobs by not understanding the implications of their actions. If you require assistance or consultation in applying for Reasonable Accommodation, preferably before you apply, please contact us.
Federal employees often make decisions based on significant misunderstandings concerning certain personnel processes. Whether it’s the agency’s obligation to “produce my Official Personnel Folder (OPF) immediately upon my request” or Veterans Preference falsely interpreted to mean any Veteran, whether qualified or not for the job, is assured of selection, many employees seem to subscribe to these myths. However, there comes a point when doing so can actually lead to loss of employment with very little recourse. This is more frequently the case with Reasonable Accommodation requests.
Title 29 CFR 1630.9 provides that an agency reasonably accommodate known physical or mental limitations of otherwise qualified applicants or employees with a disability, unless it can show such accommodation would impose undue hardship on its operations. While this language seems simple, both interpretation and application is incredibly nuanced and internal agency processes concerning the adjudication of Reasonable Accommodation requests is as varied as the number of agencies. Complicating the issue is that individuals with disabilities are not always entitled to reasonable accommodation, despite what they believe, and the Rehabilitation Act requires only agencies reasonably accommodate those individuals who are already “qualified” for the positions they hold.
When Reasonable Accommodation is Not Reasonable
As practitioners, we often see attempts by employees to seek reassignment or otherwise change their conditions of employment by applying for reasonable accommodation. Some employees believe they can use this process to work from home or change workgroups while others use this process in an attempt to change tours of duty that would not otherwise be changed. Some even believe a promotion can be considered in Reasonable Accomodation. In short, they believe if they simply go to their doctor and obtain “appropriate medical documentation”, the agency is obligated to make changes they want or doctor indicates. This is very far from reality.
In general, assuming the affected (petitioning) employee meets the definition of a “qualified individual with a disability” as determined by the agency and in compliance with the Americans with Disabilities Amendments Act (ADAAA) (2009), the next step is the “interactive process” of the Reasonable Accommodation process. Title 29 CFR 1630.2(o)(3) provides that the employee and agency should engage in an informal and flexible interactive process to identify precise limitations of the individual and what accommodations could overcome those limitations. Accommodations could take the form of, but are not limited to, resolving accessibility issues, job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, provision of readers and interpreters, more recently-telework, and other similar actions. However, To be entitled to a requested accommodation, the employee must demonstrate it would be both reasonable and effective to help the employee perform essential the functions of the position. Rose v. U.S. Postal Service, EEOC No. 01A45063 (EEOC OFO 2005).
Now, this is where we see issues. Specifically, employees submitting medical information in such a manner as to essentially establish a position in which they demonstrate, through the submission of medical information, they are unable to do their current, or any other available job, at all. Of course this is not in all cases. However, it does happen more than most would believe. We have seen employees submit medical documentation with a diagnosis of homicidal and suicidal ideation for example. In this particular case, their is simply no possible Reasonable Accommodation and in fact, the employee is likely to be immediately removed from the premises and should expect a proposed removal from federal service some point.
As we stated earlier, this article was not intended to provide specific instructions in applying for Reasonable Accommodation due to the nuanced nature of each case. It was intended to alert you to the simple fact that Reasonable Accommodation requests could lead to an adverse outcome the requestor never expected. Requesting Reasonable Accommodation does not protect your employment. It simply provides you an opportunity to seek reasonable accomodation in some capacity to continue working. However, the emphasis is on the word reasonable- and the perspective is from that of the agency, not the requestor.