Ask The Lawyer

By Debra Roth

Agency must accommodate disability

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Being disabled is the one protected category of illegal discrimination that any of us can join on any day and without notice.

When someone becomes disabled, disability discrimination can occur in two ways. First, the agency might openly overreact to the disability and treat an employee adversely even if the disability poses no hindrance to the employee’s ability to work. The second and more common means of disability discrimination is the failure to provide a reasonable accommodation so that the disabled employee can continue to work.

Since July 2007, every federal agency has been required to have a procedure for handling requests for reasonable accommodation. These procedures require the employee and management together to determine an appropriate and reasonable accommodation for the employee. Anyone who believes he has a disability that should be accommodated should first ask for and read the agency’s procedure for accommodating disabilities. Most questions will be answered in that document.

To fully understand the agency procedure, it is also helpful to understand some of the basics necessary to receive an accommodation. First, an employee must show medical evidence that he or she is disabled. Many employees are reluctant to share medical evidence with their agencies, believing it to be private and protected by medical privacy laws. While it is true that medical information is protected, if you are asking for special consideration for a medical condition, you must submit medical evidence. The agency is required by the Privacy Act to keep your information confidential and to use it only for the purpose of deciding whether to grant an accommodation and what type of accommodation is appropriate.

The medical evidence must demonstrate that, at a minimum, the disabled employee has a physical or mental disability that interferes with a major life activity. Recent changes to disability discrimination law have greatly expanded the definition of major life activity. Examples are seeing, hearing, walking, taking care of yourself, working, concentrating and interacting with others. Major life activities also include medical issues related to major bodily functions. A complete list of major life activities can be found at 29 Code of Federal Regulations Section 1630.2(i). Whether your particular impairment interferes with a major life activity is determined by reference to the population at large.

Once you have established yourself as a disabled person, you must then prove that you are a qualified disabled employee. In other words, you must show that you can perform the essential functions of the job without harming yourself or others. An obvious example of someone who is not a qualified disabled person is someone who becomes blind and whose job requires the operation of a motor vehicle. That person cannot be accommodated because he or she would not be able to drive safely, and driving is an essential part of the job. A less obvious example is the federal air marshal who cannot fly because he has developed an inner ear problem. An accommodation might be light duty in the office, but if flying is deemed an essential part of the job, the employee might be found to be other than a qualified disabled employee.

Once the employee is both disabled and a qualified disabled employee, the agency must grant the accommodation unless it can show that to do so would create an undue hardship for the agency. For most agencies, the cost alone is not enough to show an undue hardship. Thus, an agency must purchase equipment and make modifications to accommodate disabilities. If the blind driver described above also has a law degree, the agency might be required to consider a reassignment to a vacant lawyer position because equipment is available that would allow that blind lawyer to perform the essential function of the job.

Reassignment to another job is one of the reasonable accommodations that must be considered. But it is an undue hardship to reassign an employee if a job must be created or another employee must be moved.

These are some of the basics. An understanding of these principles and an awareness of your agency’s procedure for accommodating disabilities is your best bet for receiving an accommodation that will permit you to be employed with a disability.

Q & A Session – NSPS to GS Conversion

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was promoted from a GS-07 position to an NSPS position. Upon conversion from NSPS to GS, I was given a GS-09 position in September 2010. In October 2011, I was notified by my supervisor that I had been erroneously converted to the GS-09, and steps would be taken to revert me back to a GS-07 position. This caused me to incur a debt which has been ongoing. To date, I have not been reverted to the GS-07 and continue to carry out the same duties I have done all along on my GS-09 position. Do I have grounds to contest the downgrade? And who should I talk to?

A:

Nothing has happened yet. And, when it does, you may have a Merit Systems Protection Board appeal or Equal Employment Opportunity claim, but you do not provide information to assess the viability of those options. I don’t understand what debt you are incurring if you have not been demoted, and, if you are, you should be entitled to at least saved pay.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Administrative Time?

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a registered dental hygienist. Civilians in my group were recently required to complete a 7-hour training. I am in direct patient care for eight hours every day and my management will not adjust my patient workload to accommodate the training. In the two months since we received notification that we had to complete the training, I have managed to find some time during training days and staff meetings, but due to website glitches was only able to get halfway through the training modules. Other civilian providers worked up to four hours over the duty day to complete with no compensation, but I cannot do that.

Now, the deadline to complete the training has passed and I believe management is punishing me by denying my TDY for a required conference because I have not completed the training. With all the computer training that is required of us, is it required for management to give us scheduled administrative time for this?

A:

It is not administrative time. It’s part of your job. You and your management should find a way for you to complete the training. If you can get off to attend a conference, there has to be a way to do other required training. Failure to complete can be used to deny other training.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Involuntary Reassignment

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I have worked outside my GG-13 080 Security series (supervisory) for eight years and performed 1101 Program Management (supervisory) work during this time. I don’t have an 1101 coded position because I was told there were no billets. Our Directorate is not reorganizing and I am being asked to step down from my position with responsibilities that include supervising five civilians and program management of a 220M contract. For my new position, I am being asked to transfer into a different division, apply and compete for a GS-13 “non-supervisory” 1101 position and manage a low level project. Is there any obligation to provide me with an equivalent position/responsibilities? What are my options?

A:

No. Management can reassign you as long as it does not reduce your pay. It cannot make you apply for a job you do not want. The optics differences between an involuntary reassignment out of supervision and your voluntary application for that position are significant.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Threats

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

After getting to my third level manager, I recorded him saying that if I continued up the chain of command, I would pay dearly and that he would make it happen over and over. After being sent 50 pages of information and supporting documents, the Office of Special Counsel did not want to hear the tape and rejected my case. Is there another route?

A:

There is not enough information to answer your question. If you recorded your third level management surreptitiously, I understand why OSC did not want to hear the tape. Federal employees have been successfully fined for similar actions. You do not say what kind of prohibited personnel practice you were complaining about. Whistleblower and some other reprisals can be pursued further by a federal employee to the Merit Systems Protection Board. On other types of prohibited personnel practices, OSC does have the final word.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Viability of EEO Complaint Following Allegations of Injustice

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a federal GS-9 Criminal Investigator. I am leaving my current position because I was told by my boss that a GS-11 position would not be offered in my series, let alone a GS-12. Now that I have accepted a new position at another federal facility, I have been told the GS-11 Criminal Investigator position will be posted as soon as I leave. I know he is considering promoting a younger person to the GS-11 position that has been loyal to him for more years than I have been working for him and I am under the impression that this fits an EEO complaint, besides presenting a lack of integrity. Is there anything I can do?

A:

I cannot comment on the merits of your claim. I would note that once you leave to accept a promotion, it becomes a very practical difficulty to pursue your allegations of injustice at your old agency.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Federal Disability

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

In our Post Office alone there are at least three employees receiving disability from the military. One carrier receives 100 percent, a clerk 80 percent and another carrier 30 percent.

If someone is deemed 100 percent disabled by the federal government and is receiving 100 percent disability pay, how are they permitted to work full time, on the overtime desired list, working the physically demanding job of a letter carrier?

A:

It depends on the disability. Many disabled persons are able to work quite effectively, particularly if they receive reasonable accommodations for their disabilities.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – LWOP Question

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a military spouse and a federal employee with one year of service. My husband received PCS orders to a different area and I am moving with him. My agency will have a vacancy in the new area but it is only a GS-06 and I am currently a GS-08. I don’t want to transfer into that position because I lose my preference if I take it and I don’t feel it’s comparable. My director is requesting denial of my LWOP request because she wants to fill my position since I won’t take the transfer. Do I have any options?

A:

You can stay home and keep your current job. Or, you can take the downgrade (or no job) and go on the PCS. LWOP is at the discretion of management.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session – Working for Foreign Defense Contractors

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Suppose someone works for the Department of Defense with a secret clearance. Upon retirement he would like to move to another NATO country and work for a defense contractor. What legal and/or clearance issues does this raise?

A:

The defense contractor will understand the security requirements and be able to advise you. Sometimes it is sufficient for you to work at the “secret” level with an American clearance. Sometimes more is required. Ask your potential employer what you need. It may be just a matter of being processed for another clearance level.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.