EEOC: Denial of Reasonable Accommodation Found

Via EEOC:

Denial of Reasonable Accommodation Found.

Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.
Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

OPM Issues Guidance For Maximum Telework Flexibilities, Employees to Seek Direction From Agency Heads

 

On March 15, Acting OPM Director Russell  T. Bought issued an “Updated Guidance for the National Capital Region on Telework Flexibilities in Response to Coronavirus”:

In light of the evolving situation concerning the corona virus (“COVID-19”) and the National Capitol Region (NCR) experiencing community transmission, the Administration wants to ensure that department and agency leaders assertively safeguard the health and safety of their workforce while remaining open to serve the American people and conduct mission critical functions.

All Federal Executive Branch departments and agencies within the National Capital Region (NCR), consistent with OMB’s recent guidance (0MB M-20-13), are asked to offer maximum telework flexibilities to all current telework eligible employees, consistent with operational needs of the departments and agencies as determined by their heads. In addition, we encourage agencies to use all existing authorities to offer telework to additional employees, to the extent their work could be telework enabled. If employees are not eligible for telework, agency heads have the discretion to offer weather and safety leave, or the agency’s equivalent, including for employees who may not have been considered “at higher risk” under 0MB M-20- 13. Furthermore, agency heads should develop an operational plan that maximizes resources and functional areas to most safely and efficiently deliver these mission-critical functions and other Government services (including but not limited to staggered work schedules and other operational mitigation measures).

See OMB Guidance M-20-15 (https://www.whitehouse.gov/wp-content/uploads/2020/03/M20-15-Telework-Guidance-OMB.pdf)
Over a week ago, we understand that State/M Bulatao asked employees with mobile/remote access to test their remote access capabilities by participating in a worldwide remote log-in exercise.
This OPM guidance is only for the National Capital Region (NCR) but related to this, a concerned source recently told us that many State Department management platforms are “still not cloud based” or “not outsourced to regional centers”, and so for overseas employees, many locally employed staff must come into work.

 

EEOC Finds @StateDept’s Denial of Reasonable Accommodation and Disability Discrimination Unlawful

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

The federal government, including the Agency, is charged with being a “model employer” of individuals with disabilities. See 29 C.F.R.  1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of “”reasonable accommodation” for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630″), at Section 1630.2(o): Reasonable Accommodation.” (via)

Via ssa.gov

Denial of Reasonable Accommodation & Disability Discrimination Found.

Complainant filed an EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation, and discriminated against him based on his disability when it rated him “unsuccessful” on his performance evaluation. On appeal, the Commission found that the Agency failed to show that providing any of Complainant’s many requested reasonable accommodations would cause an undue hardship. The Agency’s broad rejections did not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Further, the Commission noted its concern with the Agency’s lack of participation in the interactive process. The Agency not only rejected Complainant’s numerous suggestions, but it failed to suggest any alternatives and blamed Complainant for the alleged breakdown in the interactive process. The Commission further found that Complainant’s “unsuccessful” rating was also discriminatory. While the record contained evidence of Complainant’s ongoing performance problems throughout the year, including numerous emails from his supervisor, the Commission observed that some of the emails followed Complainant’s requests for accommodation. Moreover, the major life activities that were impacted by Complainant’s PTSD, for which he was seeking a reasonable accommodation, were the same skills identified by management as needing improvement (i.e. focus, concentration, and avoiding distractions). Among other things, the Agency was ordered to immediately take all steps necessary in accordance with Commission regulations to provide Complainant with reasonable accommodation; to rescind and expunge the unsuccessful rating; and to determine Complainant’s entitlement to compensatory damages. The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of harassment. Wilmer M. v. Dep’t of State, EEOC Appeal No. 0120160352 (Feb. 22, 2018).

Denial of Reasonable Accommodation & Reprisal Discrimination Found.

Complainant, who had a mixed connective tissue disease, alleged she was denied a reasonable accommodation, and subjected to reprisal when the Agency included certain elements in her work commitments. Complainant requested to telework an additional day each week due to her extended commute and per her doctor’s recommendation. However, Complainant was placed on a new team with “face-to-face” and “physically available” commitments. On appeal, the Commission found that Complainant could perform essential function of her job with a reasonable accommodation of telecommuting. Complainant identified a reasonable accommodation of telecommuting two days a week and fully complied with Agency procedures. Rather than provide the requested accommodation, however, the Agency denied Complainant’s request, and only months later granted situational telework. The Commission found that this was ineffective, because Complainant’s condition merited consistent telework to address her symptoms and to prevent exacerbation of her condition. While Agency managers indicated that there was not sufficient work for Complainant to do while teleworking, no basis was shown for this assertion. The Commission cited significant issues with the manner in which the Agency engaged in the interactive process, including continuing to require further medical documentation despite the fact that the Agency already had the information in its possession. The Commission concluded that the Agency did not make a good faith effort to provide Complainant with reasonable accommodation. The Commission also found that Complainant was subjected to reprisal when her work commitments were revised to include terms like “face to face” and “physically available.” The Commission noted the close temporal proximity between Complainant’s request for reasonable accommodation and the change in her work commitments, and stated that Complainant was the only employee impacted by the reassignment whose new commitments evinced a clear disapproval of telework. The Agency was ordered, among other things, to provide Complainant with the option of teleworking two days per week if she still occupied her position or a similar position, investigate Complainant’s claim for damages, and provide appropriate training for the responsible management officials. Alejandrina L. v. Dep’t of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

 

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Papal Visit & Telework: And the @StateDept GO Has Reportedly Crashed Already #PopeInDC

Posted: 12:11 pm EDT
[twitter-follow screen_name=’Diplopundit’ ]

 

Last week we’re told that State/IRM had advised all Bureaus that GO can only handle about 25% of State Department teleworkers.  Folks were reportedly told to plan to work in the office.

Apparently, it is expected that “traffic delays will be minor” compared to Foggy Bottom’s connectivity issues.

This week, most of DC’s feds have gone on telework schedule due to the popepocalypse.

And. It looks like today, the State Department’s remote access system has already crashed.  Hard.

General question not related to the papal visit … so what happens if something really bad happens? How will the State Department manage if only 25% of its employees are able to telework? How does this compare to the telework capacity of other federal agencies?

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Here is the announcement posted online on system status, which does not indicate any mention of capacity issues:

SYSTEM STATUS as of 9/22/2015:
Please be advised due to higher than normal call volume, MRA Service Desk call hold and average wait times are 20 minutes and may be longer in some cases. If you have issues accessing GO, please reference our User Guides in the upper right hand corner of the screen. If you have any other concerns please call MRA at 202-647-2000 option 3 for support.

Customers using IE, Version 11 to log into Global OpenNet(GO) should click here for important instructions on how-to configure browser settings. If the link does not work, please follow the steps below.

  1. Click on Required System Setup
  2. System Setup for Windows 7 User Guide and
  3. go to page 18 for instructions.

ANNOUNCEMENT(S): Windows 10 GO Compatibility: The Windows 10 Operating System (OS) has been tested and confirmed to be compatible with Global OpenNet (GO). For customers using the Windows 10 OS, please reference the Windows 10 User Guide found here or by clicking the “Required System Setup” tab above.

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