The Rehabilitation Act of 1973 defines a qualified individual with a disability as one who can perform the essential functions of the position in question with or without “reasonable accommodation.” Though many federal employees have heard the phrase “reasonable accommodation,” its meaning is frequently misunderstood and litigated.
A federal employee is only entitled to a reasonable accommodation if he or she has a permanent impairment that is substantially limiting in one or more major life activities (see Federal Legal Corner, 9/3/03). Someone with a temporary impairment, or a moderately limiting impairment (as opposed to a substantially limiting one), may be accommodated by an agency – but the agency does not have a legal obligation to provide such an accommodation under the Rehabilitation Act.
On the other hand, an agency cannot escape the duty to accommodate merely by claiming that an impairment is “not an official disability.” While an employee must notify an agency of his or her disability and request an accommodation, both parties have an affirmative duty to engage in an interactive dialogue regarding effective and appropriate reasonable accommodations. This means that once the agency is aware of an employee’s substantially limiting impairment, the agency must make inquiries regarding the impairment and what accommodations, if any, are necessary to accommodate it.
A prudent employee will not wait for an agency inquiry to begin discussing a reasonable accommodation. He or she should submit to a supervisor, and/or the appropriate personnel official, a letter from a doctor detailing the condition, how it limits the employee in the workplace, and actively suggesting possible accommodations. The agency then has an obligation to provide an accommodation or, at the very least, to continue the discussion regarding possible accommodations in good faith.
Employees must understand that by requesting accommodations, they put their medical condition at issue. The agency may therefore request that an individual submit medical documentation establishing whether the employee has a substantially limiting impairment that requires accommodation, and, if so, what type of accommodation. An employee is not entitled to determine what accommodation he or she will receive, though he or she must be involved in a discussion as to the appropriateness and effectiveness of proposed accommodations. Ultimately, the employer has the discretion to decide what form of accommodation to offer, based on: the essential functions of the particular job involved; the precise, job-related limitations imposed by an individual’s disability and how these can be overcome by reasonable accommodations; consultation with the employee regarding potential accommodations and their effectiveness; and which accommodations will infringe the least upon the employee and the agency. What the agency may not do is ignore an employee’s request.
Types of reasonable accommodations frequently provided include: flexible work schedules, ergonomic or assistive work equipment, the opportunity to work from home, extra time for projects, removal from circumstances which adversely impact the disability, and, as a last resort, reassignment.
Often, an agency claims that offering a particular accommodation will impose an “undue hardship” upon it. If an accommodation imposes an undue hardship, then it is, by definition, not “reasonable.” However, an agency cannot merely assert such a hardship – it must prove that the accommodation would impose significant difficulty and/or expense, considered in light of: 1) the nature and cost of the accommodation; 2) the overall financial resources of the facility; 3) the number of employees at the facility; 4) the type of operations in which the facility is engaged; and 5) the impact of the accommodation upon the operations of the facility. The more unique a person’s position in a particular operation – the more an agency depends on an individual on a day to day basis – the greater the hardship if an accommodation impacts the employee’s work schedule or location. For example, a lone receptionist for an office may not be allowed to work from home or be given a consistently flexible work schedule as a reasonable accommodation because the office depends upon him/her to answer the phones and greet visitors. On the other hand, someone who works on projects independently will be in a better position to work from home and/or request flexible hours.
** 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. **
