Failure to Consider Telework as Reasonable Accommodation Results in DOD Liability
This Spring, the Equal Employment Opportunity Commission (EEOC) reminded us once again that providing Reasonable Accommodation for a disability includes the thoughtful consideration of telework. In Elly C. v. Dept of Defense, March 14, 2018, the EEOC found that the Defense Contract Audit Agency (DCAA) failed to provide reasonable accommodation and retaliated against a GS-12 Senior Auditor when DCAA denied her request to telework. As a result, the Complainant was awarded $52,000 for compensatory damages, 320 hours’ worth of back pay/benefits for the time she took leave when she could have teleworked, and some $2600 in out of pocket medical expenses. There are five clear and compelling lessons from this case that I want to immediately highlight. After these lessons, I’ve included the facts of this interesting case to provide a relatable context to understand the decision.
- Telework as a reasonable accommodation for disability (aka medical telework) must be considered separately and outside of the agency normal rules for telework. For example, if your agency does not allow probationary employees to telework or doesn’t allow employees from a certain office to telework, that fact alone will not be enough to deny telework for reasonable accommodation. The Agency must follow the reasonable accommodation interactive process and treat each request for medical telework on an individual basis.
- A request for reasonable accommodation is not an adversary event. The agency must engage in the reasonable accommodation interactive process in good faith to try to find a win-win solution to employees’ medical issues. In this case, DCAA missed out on 320 hours of audit work the Complainant could well have done while teleworking.
- When an Agency denies telework for operational reasons, it must specifically identify and discuss the operational harm. DCAA denied telework because the work was “sensitive.” The Administrative Judge (AJ) described this as a “generalized explanation” and “blanket characterization.” The assertion that the work was “sensitive” was not enough to identify the operational harm or prove that the reasonable accommodation created an undue hardship on the Agency’s mission. If you deny telework as an accommodation, provide a detailed explanation in writing and be prepared to prove it if there is an EEO complaint.
- Employees are entitled to request reasonable accommodation, including telework, without fear of reprisal. The EEOC found additional liability — in the form of reprisal — because the Complainant was told by her supervisor that she could face discipline if she repeated her request to telework. A request for reasonable accommodation is a legally protected disclosure; the agency may not retaliate against an employee for making such a request.
- When an employee applies to another position inside or outside the Agency, Supervisors may not disclose an employee’s medical information if contacted by the hiring supervisor. In this case, the Complainant applied for a lateral transfer to another region. When her supervisor was contacted by the hiring supervisor he said, “Note: [Complainant] is currently on a part-time schedule due to medical reasons” and went on to suggest the manager discuss schedule expectations with Complainant. The EEOC noted that under the Rehabilitation Act, a current supervisor “may not disclose [medical] information to the person interviewing the employee for the new job or to the supervisor of that job.” The EEOC found the reference to “medical reasons” even without providing the details to be a violation even though it might have been inadvertent.
Complainant was a GS-12 senior auditor who worked on a team of auditors providing support to the State Department in multi-billion-dollar litigation regarding a dispute with the Iranian government over charges for U.S. military services. This was clearly an important assignment.
The Complainant had worked on the project for some five years when she was involved in a “near death drowning” in August of 2008. Complainant’s injuries were acute; she was hospitalized, received a tracheotomy, and was placed on a ventilator for several weeks. By November, Complainant’s recovery had progressed enough to return to work. However, because her limited lung capacity left her fatigued, she requested to telework during the winter months to accommodate her condition. Her request was supported by letters from her pulmonologist and her primary care physician who stated, “telework would avoid setbacks to Complainant’s recovery by allowing her to gradually increase her activity level and to avoid exposure to harmful environmental triggers such as viruses.”
Complainant’s request was received positively by the team’s attorney. He sent an email on November 19, 2008 indicating her request “should work out fine” with her coming to the office occasionally to retrieve and deliver documentation. That same day, however, Complainant met with her Branch Chief who told her that the Regional Audit Manager “did not want anyone on the team to telework” because of the “sensitive nature” of the work on the State Department case. He asked her to pursue a reassignment, but Complainant indicated she wanted to remain on the team. In early December, after being rushed to the hospital as a result of breathing problems from a respiratory infection, Complaint again asked her supervisors why she could not telework while remaining on the team. Complainant’s Branch Chief and Regional Manager both sent emails reiterating that she could not telework because of the sensitive nature of the work. Her Branch Chief’s email also indicated that if she asked to telework again, she could face disciplinary action.
Complainant was absent for the remainder of December and in January 2009 began a 12-week rehabilitation program three times a week. She eventually returned to work in May but after several lengthy absences for medical reasons between May and August, she requested and received a transfer to another position within the Springfield Branch.
CLAIMS AND FINDINGS:
Complainant alleged that she was subject to discrimination based on her disability when the Agency failed to provide telework as a reasonable accommodation. The AJ found that DCAA discriminated against Complainant because it lacked good faith effort in responding to her request for reasonable accommodation. Moreover, the AJ noted that DCAA’s “generalized explanation” and “blanket characterization” that she could not telework because the work was sensitive was not specific enough to demonstrate undue hardship.
Complainant also alleged that she faced retaliation for requesting accommodation when her supervisor threatened to take disciplinary action if she raised telework again. The AJ agreed that this constituted unlawful reprisal. The AJ rejected Complainant’s claim of a hostile work environment regarding the handling of her leave and other issues during her absences because DCAA presented legitimate nondiscriminatory reasons for its actions. Finally, the AJ agreed with Complainant that her medical issue was improperly disclosed during the selection process when she applied for a lateral transfer in another DCAA office.