A FEDS’ RIGHT TO BE REASSIGNED
Federal employees do not have many rights in law or regulation to demand a reassignment, which means that unions can do a lot of good at the bargaining table boosting those rights through collective bargaining. While they do that, we thought we would share a recent EEOC comment on the right to be reassigned when needed to accommodate a disability. In this case, the employee’s workplace produced an allergic reaction known as contact dermatitis. Here are a couple of key passages from the decision in which it found the agency violated the law by not even looking for a reassignment opportunity. We have underlined some of the more significant portions and put in bold print those passages we think might surprise most readers.
“In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position…. An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his or her qualifications and interests. Bill A. v. Dep’t of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). Because it possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his or her qualifications Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing)); see also Enforcement Guidance on Reasonable Accommodation at Q. 28….
“We emphasize that a federal agency’s obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency’s search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation….
“As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position without duties relating to Building Warehouse 822, consistent with the Commission’s regulations noted above. The Agency did not do so.
Therefore, EEOC imposed the following remedies, among others.
“1. The Agency shall immediately identify all vacant funded positions or assignments with equivalent pay and status to Complainant’s Materials Handler Supervisor position, and determine, with Complainant’s input and per the requirements of the Rehabilitation Act, which of these positions he is able to perform, with or without accommodation. If a vacant funded position is identified, Complainant shall be placed in the position.
“2. The Agency shall restore any leave used by Complainant due to the Agency’s failure to provide him with an effective reasonable accommodation as of April 24, 2013.”
It also ordered the parties to look into how much the employee is owed in compensatory damages, which can be as high as $300,000.00
Thanks to the most recent amendment to the disability protection statutes, there is a very broad definition of what qualifies as a disability. Consequently, union reps helping one of those employees should use this precedent to pursue reassignments when relevant.
See Julius C. v. Lisa Disbrow, Air Force, EEOC Appeal No. 0120151295 if you need more details.