The EEOC recently issued a decision indicating that where an agency has provided a particular reasonable accommodation in the past, it will be difficult to stop providing the accommodation because of a claim that the accommodation creates an undue hardship for the agency.
In Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (March 21, 2012), an employee requested reasonable accommodation to allow her to arrive at work 9:30 am, which was the beginning of the office’s core hours. Lamb’s request for accommodation was based on her doctor’s instruction to exercise each morning to combat her depression, and on her need for extra time to get ready in the morning due to a missing right forearm and hand and carpal tunnel in her left arm. Although her supervisor at the time denied her request to arrive later than 9:30 am, he allowed Lamb to earn compensatory time from 6:30 to 7 pm on weekdays, and use the compensatory time from 9:30 am until her arrival at 10 am. This arrangement remained in place for approximately four years.
When Lamb’s supervisor changed, the agency notified her that she would no longer be allowed to arrive after 9:30 am. Lamb resubmitted her request for accommodation including flexibility in her arrival time, which the agency denied. The agency told her that she was already allowed to arrive between 6:30 and 9:30 am, and that if she arrived after 9:30 am, she would have to work past 6 pm and would therefore be alone when she left the building, which created a security risk, or a "direct threat" to her.
Lamb contested the denial of reasonable accommodation in an EEO complaint. The Commission first found that her missing forearm and hand made her a targeted individual with a disability entitled to reasonable accommodation. The Commission then found that by allowing Lamb to earn and use credit time to arrive at work after 9:30 am, the agency had been granting her an effective accommodation for about four years, when it suddenly denied her request to arrive later. It rejected the agency’s argument that allowing the employee to stay later than her coworkers constituted a "direct threat."
The Commission also rejected the agency’s allegation that allowing the complainant to begin her work schedule at 10 am instead of 9:30 am was an "undue hardship." The Commission noted that in order to prove that a requested accommodation constitutes an undue hardship, it must show that providing the accommodation would "cause significant difficulty or expense." Because the agency had already been providing the requested accommodation to the employee for four years, it failed to show that continuing to do so would cause significant difficulty or expense.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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