LIGHT DUTY DENIALS CAN BE CONSTRUCTIVE SUSPENSIONS
What do you do if an employee’s doctor says she can only return to work if given light duty, the agency refuses to provide any, and as a result the employee takes large amounts of annual, sick and LWOP to lessen the impact of the job on his physical condition? The first thing you should do is read a new MSPB decision entitled, Kevin Cortez Bean v. U.S. Postal Service, 2013 MSPB 96.
The Board went out of its way to declare that this could be an adverse action situation. It began by explaining that normally in cases where the employee claims a constructive discharge or suspension, he/she must show 1) the employee lacked any meaningful choice but to leave, and 2) that this was because of the agency’s improper action. The agency argued that while having to take all that leave put the employee in the unpleasant situation of having to work contrary to medical restrictions, but not intolerable.
The Board bluntly rejected that idea saying, “It is difficult to imagine circumstances in which this premise would be acceptable.” Consequently, it returned the case to a local MSPB law judge to decide whether the agency’s refusal to provide light duty or some similar accommodation was wrong. If it was, and the employee can show he had no choice but to take the leave given his condition he will likely get his leave restored, back pay with interest for the LWOP time, and perhaps attorney fees.
The bottom line here is that the Board does not expect anyone to disregard medical restrictions. That is a disabling condition entitling the employee to a reasonable accommodation so long as it does not create an undue hardship on the agency.