Using Leave as a Reasonable Accommodation

Exhausted FMLA and now denied leave for a medical condition or charged AWOL?

Important note: Leave granted under the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are separate processes with similar, though not identical, eligibility criteria and are not mutually exclusive. However, unlike FMLA, leave granted in connection with Reasonable Accommodation can only be granted for medical issues affecting the employee, not a family member.

If you are a federal employee dealing with a health condition, you might feel like you’re stuck between a rock and a hard place. You exhausted your Family and Medical Leave Entitlement (FMLA) and you still need time off for treatment or recovery, but you’re worried about getting in trouble for "excessive leave" or being put on AWOL status. This situation is becoming increasingly common as the federal workforce ages and the federal government is unable to recruit younger workers.

Notwithstanding already approved FMLA leave, many federal employees do not realize that asking for leave due to medical issues may constitute a request for a Reasonable Accommodation and require processing under Reasonable Accommodation procedures. Under the law, your agency must seriously consider your request, regardless if you exhausted your FMLA entitlement. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when it's needed because of an employee's disability.

Your health and career are not mutually exclusive. Here is what you need to know about your rights and how to protect your career and health.

What Counts for Using Leave as a Reasonable Accommodation

Under EEOC rules, your agency can provide leave as an accommodation in several ways. This includes using your earned paid leave (sick or annual leave) or taking unpaid leave (LWOP).

Common reasons a federal employee might need disability-related leave include:

• Medical Treatments: Chemotherapy, radiation, surgery, or dialysis.

• Testing: Routine blood work or diagnostic tests.

• Workplace Hazards: If the AC breaks or there is construction that makes your disability worse.

• Recovery: Time to rest when your symptoms "flare up."

• Service Animals: Training with a guide dog.

• Equipment Repair: Getting a wheelchair or prosthetic fixed.

• Extra Breaks: You need extra time during th eworkday to tend to your medical needs while at work, or need extra time to get to and from your lunch break.

Essentially, the same reasons that would permit the granting of leave under the FMLA apply to leave granted as a form of Reasonable Accommodation.

Agency Responsibility (The "Interactive Process")

Once your supervisor knows you need leave because of a medical issue, he cannot just ignore it or point to a handbook. He is required to talk to you—this is called the interactive process. However, most supervisors instinctively revert to offering or advising on FMLA. This was how they were trained.

In a significant case (Tynisha H. v. Dept. of Veterans Affairs), the Equal Employment Opportunity Commission found the agency liable for disability discrimination when, despite being aware of an employee's disability-related need for leave, agency managers issued her a memorandum regarding excessive leave usage, placed her on medical certification, charged her with AWOL, and denied her leave requests. The agency asserted that approving unscheduled leave was contrary to agency policies. However, the EEOC made it clear: agencies may have to change their internal leave policies to accommodate a disabled worker.

Special Note on Local Leave Without Pay (LWOP) Policies

Many federal agencies maintain policies that allow local leave approving officials to authorize a specific amount of Leave Without Pay (LWOP) at the local level. Based on a number of local policies we have seen, this authorization may not require higher-level approval or even the involvement of Human Resources. These policies are usually not department wide, but specifically created by agencies within the department and can vary widely.

Your Responsibility as an Employee

Contact your supervisor to request a reasonable accommodation. We recommend that you make this request both verbally and in writing. Your supervisor may handle your request locally or direct you to a Local Reasonable Accommodation Coordinator (LRAC) for more formalized processing. However, most agency policies allow for the local supervisory official to grant the request without formal processing (key exception is telework or remote work). If you find yourself engaged in the Reasonable Accommodation process after invocation, fully cooperate with the agency.

The law is a two-way street. If your medical need isn't obvious, you have to help your agency understand why you need the leave. If the agency asks for medical documentation and you refuse to provide it, the agency can legally deny your request. In one case (Complainant v. Dept. of the Interior), the EEOC found the agency did not subject an employee to disability discrimination when it denied her requests for advanced leave and placed her on leave restrictions. The agency engaged in the interactive process with the employee several times in attempting to ascertain more information about her condition and what accommodation was needed. However, she never submitted the requested documentation, and as a result, her requests for advanced leave were permissibly denied.. Don't let this happen to you—keep the lines of communication open.

Can the Agency Deny My Request?

In some cases, yes. An agency does not have to grant leave if it causes an "undue hardship" (meaning it makes it nearly impossible for the agency to do its job). This is a very high burden for any agency to meet.

• Indefinite Leave: You usually cannot ask for "forever" leave. If you’ve been out for two years and have no return date, the agency can likely move on and hire someone else (Complainant v. VA). The key guiding phrase is, "foreseeable end in sight".

• Forced Leave: Your boss cannot force you to take leave if there is another way to help you stay on the job. For example, if you can work from home (telework) instead of taking a day off, the agency should allow that if it doesn't hurt operations. However, a recent joint EEOC and OPM bulletin is expected to significantly change, if not reverse, decades of EEO precedence in this regard.

If Denied

You may encounter a denial in a number of ways including, but not limited to:

• No response

• Outright denial without a reason

• Denial based on previous use of FMLA

• Denial based on lack of knowledge of what the supervisor can approve

• Some form of non-descript reasoning for denial

In the event of a denial, an employee may have an actionable EEO complaint based on various grounds. This determination is fact- and circumstance-dependent, and rarely are two situations identical. We always recommend employees establish and maintain an "evidence trail" to include emails and other forms of communication concerning the Reasonable Accommodation request. If denied, the employee should file an EEO complaint if the facts and circumstances warrant such an action. This can be accomplished by initiating timely contact (within 45 calendar days) with an EEO counselor.

How InformedFED Can Help

Our Expertise, Your Advantage.

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

• EEO Complaints: Initiating and managing informal and formal complaint stages, including mediation, investigations, reviewing Reports of Investigation (ROI), and assisting during the hearing stage.

• Appeals (MSPB & FLRA): Providing comprehensive support for Merit Systems Protection Board appeals and Unfair Labor Practice complaints.

• Career Transitions: Expert guidance on FERS Disability Retirement applications and Reasonable Accommodation requests, reconsiderations, and appeals.

• Suitability and Security: Former Suitability Adjudicators conduct document reviews and consultations regarding background checks and SF-50 coding errors. Additionally, they prepare written responses and requests for remediation.

• Union Assistance: Our consultants collaborate closely with local union representatives and leadership to ensure unions provide the most effective representation to their members. Upon request from the local union, we will either work directly with its members or with its union representatives. Additionally, our consultants provide both small group and large group training for union training programs.

Why Federal Employees and Unions Choose InformedFED

• The Cost-Control Model: We eliminate massive upfront financial risks by offering flat-fee services and low-minimum hourly retainers, making expert support affordable even for issues where the financial recovery wouldn't justify a high-priced attorney.

• Unbundled, "A La Carte" Services: You retain control and only pay for the services you need. You can hire us for a single task—like an Initial Case Assessment (ICA)—and decide your next steps from there with no ongoing obligation.

• Unmatched Accessibility: We are the only experts available to clients 24/7, including evenings, weekends, and holidays, ensuring you never miss a critical deadline.

• Insider Knowledge: Our consultants possess decades of "internal" knowledge of agency policies and HR procedures, providing a strategic advantage during early dispute stages and settlement negotiations.

• Indirect Representation: We offer "indirect representation," allowing you to retain us for specific tasks or phases—such as writing responses or second opinions, significantly reducing costs compared to full scope legal representation.

Disclaimer: InformedFED provides credentialed and recognized Subject Matter Experts to deliver administrative, litigation, and consulting support directly to federal employees and unions.  We do not provide legal representation.  Click here to book a no obligation consultation.