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.

Comments

  1. Dave Says:
    February 20th, 2013 at 5:12 am

    Something should be done for the mental disable leadership at my Agency.

  2. Jason Says:
    February 22nd, 2013 at 8:36 am

    Great article, but please read up on person first language. Instead of “disabled employee” you could easily say, “employee with a disability.” The nomenclature IS very important to those of us who have disabilities. While I realize this was based on EEOC regulation a change such as this will not alter its meaning.

  3. Deb Says:
    March 20th, 2013 at 12:46 pm

    I’ve decided to take some “great” advice and apply for disability retirement!! I’ve had enugh of the playing the accommodations game with “bad” Managers who keep getting away with saying “I didn’t know” as an excuse when APPROVED paperwork is supposed to follow to next position!! Tired of filing complaints. They won!

  4. Deb Says:
    April 8th, 2013 at 1:42 pm

    Wow maybe posting here helped because today I had a wonderful meeting at the Pentagon to see the latest technology for people with my disabilities (part of accommodation). My condition is “very” rare but I was impressed with the CAPTEC Staff’s presentation!! THANK YOU guys!

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