Whether a fed’s job involves driving, operating equipment or enforcing the law, seizures create serious, if not life-threatening, risks for the employee, co-workers, employer and public. So, what choice does an employer have when an employee informs it that s/he is having seizures and would like to be moved to a different position indefinitely until s/he can get them under control or given a leave of absence until they are controllable. Assume the employee is newly hired, still in a probationary period, and not yet eligible for FMLA leave.

We needn’t guess at the proper response because the EEOC just spelled it out for an employer in Arkansas when it responded to the employee by letting her go. EEOC confirmed that it is illegal to take adverse action against an employee for having a disability or merely requesting an accommodation. It convinced the employer to reinstate the employee and give her a $35,000 settlement. If the employer was unable to find an accommodation after extensive back and forth discussions with the employee or the particular accommodation created an undue hardship, it could have let the employee go.

A subtle wrinkle on these types of cases is that at times the employee, already weakened by news of a disability, will simply resign at the first hint from management that it is not happy or that an accommodation is unlikely. If unions encounter those situations they should get behind the employee and allege a constructive discharge as well as violations of the disability laws. If an HR specialist hears about an employee simply walking away, at a minimum s/he should look deeply into what the employee said and what was said in response by the manager. If that investigation suggests an error, then it is time to move up the chain of command to talk about “the right thing to do” in that situation.

P.S. It does not matter if the employee is in a probationary period. The Rehabilitation Act protections apply from the first day on the job–and in some cases before the employee reports to work.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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