WHEN DINOSAURS DECIDE FULL-TIME TELEWORK REQUESTS

With our apologies to the dinosaur community, we have to say we immediately thought of the stereotypical behemoths when we read about an agency official who decided that “telework was not an entitlement” and categorically forbade “supervisors, military, and administrative personnel and anyone on alternate work schedules from participating in regular and recurring telework.” We especially focused on the last phrase which penalized employees by denying them one benefit Congress and the President have endorsed because they took advantage of another benefit Congress and the President endorsed. Fortunately, this modern-day dino ran into his own personal meteorite compliments of EEOC.

An employee worked for the Dept. of the Army as a GS-14 Procurement Analyst. Thanks to a medical condition that remained undiagnosed, she “could not drive or engage in prolonged standing due to frequent dizziness, chronic headaches, cervical radiculopathy, and impaired fasting glucose.”  When she asked for full-time telework as an accommodation for her disability, she was offered a scooter to get her from her home to nearby van pools, although no mention was made of how she was supposed to load the scooter into the van or how that helped her around the office.  All she was told was that the “needs of the office required her [in-person] presence.” Ironically, the agency took that position despite admitting that she “was able to perform the essential functions of her position without accommodation” and acknowledged that [her manager] had allowed Complainant to telework “for a number of months” prior to Complainant’s request for reasonable accommodation.

Well, you can probably guess what happened next given that all the employee had to show to prove disability discrimination was that (1) she was an individual with a disability; (2) she was a qualified individual with a disability, i.e. she could perform the duties of the position with or without an accommodation; and (3) the Agency failed to provide a reasonable accommodation.

EEOC rained down on this dinosaur with the following fiery judgements:

Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense; denying the accommodation because of office policy did not explain how this particular employee’s situation created an undue hardship.

Stating that the “needs of the office” require employees’ on-site presence is not an INDIVIDUALIZED ASSESSMENT. It is an office-wide policy statement that says nothing about the specific employee or her job.

EEOC ruled that the offer of van pools and scooters was not a reasonable accommodation because it did not effectively address ALL the employee’s limitations, suffering medical episodes as a result of commuting.

The agency made its decision that telework would cfreate an “undue hardship” based on some simplistic (and we would say lazy) policy defense rather than apply the five-part criteria regulations prescribe, i.e.,

A determination of undue hardship should be based on several factors, including: • the nature and cost of the accommodation needed; • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and • the impact of the accommodation on the operation of the facility.

EEOC awarded the employee full-time telework, money damages and instructed the agency to train and tame its policy-level dinosaur using some formal discipline.

Requests for full-time telework are quite common these days. So, this case might be a good guide for union reps helping employees.  Check out Linda v. Christine Wormuth, Sec’t’y., Dep’t. of the Army, EEOC No. 2022000831 (2023

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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