Promotions can be denied when an employee’s disability creates a risk of injuring himself or co-workers in the future; there does not have to be a record of past injuries. But, the law requires agencies denying promotions to meet a certain criteria, and when the DoD’s Pentagon Force Protection Agency ignored them, it resulted in an EEOC order that it rehire the employee with eight years of retroactive pay.EEOC wrote, “Any qualification based on the risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily….To exclude an individual based on possible future injury, the Agency must show more than that an individual with a disability stands some elevated risk of future injury; rather, it must show that there is ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” 29 C.F.R. § 1630.2(r)

The Commission went on to identify four factors it will look at to determine whether a job denial based on future risk is allowed.  They are:

  1. the duration of the risk,
  2. the nature and severity of the potential harm,
  3. the likelihood that the potential harm will occur, and
  4. the imminence of the potential harm.

Even more significantly, EEOC wrote, “A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the agency must gather information and base its decision on substantial information regarding the individual’s work and medical history.” That is a very high bar to clear.

In this case, the Pentagon Force Protection Agency did not make an individualized assessment of the alleged risk posed by Complainant and, instead, applied a blanket medical qualification standard without examining the specific application to Complainant when it found exercise/mold induced anaphylaxis disqualified her for the Police Officer position.

The employee will also get a retroactive credit for annual and sick leave that would have been earned and the Agency will pay extra compensation for the adverse tax consequences of receiving back pay as a lump sum.  Check out Candi R., v.James N. Mattis, Secretary, Department of Defense, EEOC Appeal No. 0120172238 (2019)

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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