The short answer is that it’s something the agency must engage in to avoid violating the law and incurring huge financial penalties.  The slightly longer answer is that it can often require an agency to bypass or waive its own rules and regulations to help an employee avoid losing his/her job or just some benefit of the job. A complete answer can be found in the new EEOC decision Irina T. v Robert Wilkie, Secretary, DVA, EEOC No. 0120180568 (2019) where an employee with a disability was denied a request for additional leave beyond what FMLA provides. Irina was a …

disabled employee due to blood pressure and diabetic problems.  She asked for LWOP when her FMLA entitlement ran out and the agency denied it simply because its formal leave policy was to charge employees AWOL when they exhausted all available paid leave and her FMLA coverage ran out.

Irina challenged the agency’s simple reliance on its own rules and regulations saying that the agency had failed to engage in an “interactive process” with her to find a reasonable accommodation and EEOC agreed, writing…

The Agency’s failure to engage in an individualized assessment of Complainant’s circumstances, rather than its automatic application of its general leave policy, has resulted in the Agency being unable to meet its burden of proving that granting Complainant additional LWOP would have created an undue hardship on its operations.

EEOC further wrote that “had the Agency endeavored to engage in the interactive process with Complainant, it might have discovered this other viable accommodation — part-time work. See 29 C.F.R. § 1630.2(o)(2)(ii) (reasonable accommodation can include part-time or modified work schedules).”

So, the next time you hear an employee’s request for a particular reasonable accommodation was denied simply because the written agency policy—including a collective bargaining agreement—does not allow it, check to see if the agency engaged in an “interactive process” with the employee exploring the specific details of the employee’s needed accommodation and alternatives.  If not, the agency can be liable for reinstating the employee, back pay, compensatory damages, attorney fees and even more money under certain circumstances.  The Job Accommodation Network has posted a very good explanation of how to apply it.


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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