Ask FELTG: Can an employee request religious accommodation if they themselves are not a member of a religion?

June 2, 2026

Ask FELTG (cont.): For example, can they request an exemption from attending a mandatory event because the event has religious undertones?

They very well could, and a case nearly three decades old provides an excellent example of how this type of request might come up, Harmon v. DOT, EEOC Req. No. 05980433 (Dec. 8, 2000).

The complainant, an Air Traffic Control Specialist, became addicted to prescription narcotics. He disclosed this to the agency, so the agency moved into an administrative position, and required him to attend a mandatory drug rehabilitation program in order to continue his employment. The rehab required attendance at Narcotics Anonymous (NA) meetings for one year.

Herein rose the issue: the complainant found the NA meetings were religious in nature, because they included “promoted praying and other religious activity,” id. at 2, and the “concept of a Higher Power,” id. at 6. The complainant was an agnostic, did not believe in the tenets of the program, and requested a comparable non-religious alternative rehabilitation program, which the agency denied.

In order to establish a prima facie case of failure by the agency to accommodate complainant’s religious beliefs or practices, a complainant must show that:

  • He has abona fide religious belief, the practice of which conflicted with an employment duty;
  • He informed the agency of this belief and conflict; and
  • The agency nevertheless enforced its requirement against complainant.

Partridge v. USPS, EEOC App. No. 01943980 (1996).

If the agency denies the accommodation the burden shifts to the agency to demonstrate that it cannot reasonably accommodate complainant without incurring undue hardship. Title VII, § 701(j); Harmon at 7; see also Groff v. DeJoy, 600 U.S. 447 (2023).

So, where did this all end up?

There was no question the complainant stateda prima facie case; even the agency’s attorney admitted as much. But, the agency disputed the complainant’s claim that the NA program was religious in nature, and that offering alternative programs would not provide effective rehabilitation and instead would cause an undue hardship. Id. at 8. However, because the agency only raised the undue hardship issue on reconsideration, and not at the hearing, the Commission did not address it.

This left the Commission needing only to address the remedy. Because the complainant did not suffer any actual injury he was not entitled to compensatory damages, but was entitled to attorney fees and costs. Id. at 3. In addition, the Commission ordered the agency to:

  • Provide alternative treatment programs for those who do not wish to participate in NA because of their religious beliefs;
  • Discontinue the practice of requiring individuals to participate should their religious beliefs conflict with the program; and
  • Ensure that future violations do not recur, in part by informing prospective NA program participants of the religious nature of the program.

Id. at 9.

Entitlement to religious accommodations (and freedom from harassment or discrimination based on religion) extend to those who do not identify with any religion. If they didn’t, many employees could be forced to participate in activities that violate their sincerely held beliefs, or treated differently simply because those beliefs do not take the form of a religion. info@feltg.com

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.

Ask FELTG: How does an agency revoke an approved accommodation that’s not working, without violating the law?

May 12, 2026

Question continued:

Let’s say the agency approved the presence of an emotional support animal for an employee who has PTSD and anxiety disorder, but the animal is misbehaving so badly it is making the workplace intolerable not just for the employee who owns the dog, but for coworkers as well.

Thanks for the question. Any time your agency is faced with a new problem regarding an employee’s reasonable accommodation, it’s imperative to use the legal framework to determine the next steps. Because even if the details are new, the law is well established.

In the case of a misbehaving animal as described above, the agency would most likely have a valid reason to revisit the accommodation – because it isn’t working. This determination triggers the agency’s obligation to re-open the interactive process and discuss alternative accommodations with the employee.

There’s an EEOC decision from a few years ago that you should check out, Meaghan F. v. Treasury, EEOC App. No. 2019005325 (May 20, 2021). The agency granted the complainant, who had a mental health condition, a 60-day trial period where she could bring her emotional support animal to work to determine whether having the animal nearby was effective in helping her perform the essential functions of her job.

After 60 days the agency concluded the emotional support animal was not an effective accommodation, because:

  • It did not allow the complainant to successfully perform her essential job functions,
  • The animal’s behavior caused disruption in the workplace, and
  • The complainant had not been caring for the animal’s needs.

Id. at 10.

The complainant requested reconsideration, stating that the dog was a puppy and had required care to such an extent that it “[i]nterfered with [her] assignments and distracted [her]” but that the problem was now resolved. Id. The agency denied the request, and the EEOC agreed with the agency:

We are disinclined to find that the Agency had an obligation to offer Complainant another trial period shortly after she failed the first one, as Complainant has not persuasively demonstrated any change in circumstance (aside from the puppy being a few months older).

Id. at 11.

We’ll be discussing service and emotional support animals in our upcoming EEO Counselor and Investigator Refresher Training June 3-4, so be sure to join if this is something you’d like to learn more about. info@feltg.com

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.

Ask FELTG: Is longer service an aggravating or mitigating factor in discipline cases?

April 7, 2026

The old adage, “You’ve been around so long, should know better” applies in many situations, but not when it comes to discipline of a Federal employee who engages in misconduct. One of the Douglas factors an agency is required to consider when making a penalty determination in appealable actions is the employee’s work record and performance – which includes length of service in their current agency, plus previous agencies and active duty military.

The MSPB considers long service a mitigating factor and has held that additional years of service do not justify harsher penalties. In fact, the longer an employee serves in the Federal government, the less likely it is that her misconduct (unless it is egregious) will lead to removal, especially if there is no past discipline. See, e.g., Wentz v. USPS, 91 MSPR 176 (2002); Brown v. Treasury, 91 MSPR 60 (2002).

Recent nonprecedential Board decisions considered decades of service as a reason to mitigate a removal. Two examples:

  • The appellant missed a required drug test because she was stuck in traffic on the way to work, and the Board mitigated her removal to a 90-day suspension – in part because she had 34-years of discipline-free service. Briscoe v. DOJ, DC-0752-23-0665-I-1 (Nov. 20, 2025)(NP).
  • Despite the appellant being a high-level supervisor who gave several of her employees marijuana gummies, the Board mitigated her removal to a demotion because, among other things, she had 33 years of service and marijuana was legal in the state where she purchased it. Betha v. USPS, CH-0752-19-0116-I-2 (Jul. 5, 2023)(NP).

On the opposite side, shorter service is an aggravating factor. It may seem counterintuitive because “You haven’t been here that long, maybe you didn’t know better” is a logical thought process for many. But the Board considers it aggravating, so we must as well.

Have a question? Ask FELTG.

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.

Ask FELTG: What should an agency consider when reasonable accommodations are needed as part of a settlement agreement? Should the agreement include stipulations of a specific accommodation, or is that a concern because the employee’s accommodation requirements may change over time?

March 17, 2026

Thanks for the questions. While settlement agreements may include stipulations of reasonable accommodation, you are right to be concerned about the potential need for making future adjustments to the accommodation, as necessary.

When drafting any settlement, you should always keep two primary goals in mind. First, you are attempting to accomplish certainty of the resolution by carefully and specifically writing out what needs to be done. Second, you must simultaneously prepare for potential uncertainties if the steps to resolution hit a roadblock. While the ultimate goal of settlement is the end of the dispute, it is a mistake to not prepare for next steps.

In the case of reasonable accommodation provisions, the agency’s obligation is to provide an effective accommodation that enables the employee to perform the essential functions of their position. You might include a general provision that the agency will act in good faith to engage in the interactive process with the employee to craft such an accommodation. If the situation calls for agreeing to a specific accommodation, try to include a provision that gives management the flexibility to re-evaluate/change the accommodation based upon the effectiveness of the negotiated provisions or changes in working conditions or the employee’s limitations.

As in any settlement, the provisions must be tailored to the specifics of the individual case. Additionally, every settlement agreement should have a thorough legal review by agency counsel before being finalized. Remember, this is an enforceable contract. Good luck out there!

Have a question? Ask FELTG.

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Ask FELTG: Does an employee’s disability forgive misconduct, if the misconduct is caused by the disability?

March 3, 2026

Thanks for the question. Many of you saw headlines about the recent BAFTA awards and how an attendee shouted the n-word at two Black announcers, and claimed his Tourette’s caused the outburst. That event prompted this question.

The answer, generally, is no. Conduct standards are the same for individuals with disabilities as they are for individuals without disabilities, and an agency does not need to permit or forgive misconduct even if it is directly related to or caused by the disability if it would not permit that conduct from someone without a disability.

Below are a couple of cases on the topic.

Case One: The complainant, a Mental Health Counselor, engaged in the following workplace behaviors:

  • Yelled at staff and banged his fists with anger, which scared his coworkers
  • Refused to perform a required evaluation and instead interrupted a coworker – while she was performing a time-sensitive task – to insist that she complete his duties for him
  • Missed a patient appointment
  • Had a combative reaction when a coworker called to check on his whereabouts and ask him about incomplete assignments

The agency terminated him based on this conduct (plus performance issues), and he filed a complaint, alleging disability discrimination.

EEOC held:

[T]he Commission’s Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at Question 30 specifically states that an employer may discipline an individual with a disability for violating workplace conduct standards even if the misconduct results from the disability. We ultimately find ample support for the Agency’s decision to remove him based, in relevant part, on his outbursts, which violated the Agency’s workplace conduct standards.

Omer P. v. VA, EEOC App. No 2024004871 (Dec.15, 2025)

Case Two: The complainant, an IT Specialist, who was on the autism spectrum (according to the case, Asperger’s syndrome), engaged in several inappropriate workplace behaviors including:

  • Eating food off coworkers’ plates during lunch
  • Hugging a male coworker without permission
  • Visiting a female coworker’s desk up to seven times per day, making comments about her appearance, and making multiple attempts to friend her on social media – then, after being told to leave her alone, waiting by her car in the parking lot, making her feel uncomfortable and unsafe

The complainant’s supervisor counseled him to stop, both by email and during a meeting with his job coach. The complainant then became agitated and waited in the parking lot for the female coworker, yelled at her, blocked her from leaving the parking lot, then followed her in his vehicle as she drove home.

The agency terminated him and he filed an EEO complaint, asserting he was terminated because of his disability. The EEOC found the agency had a legitimate, nondiscriminatory reason for the separation: the complainant’s inappropriate conduct.

Justin P. v. DFAS, EEOC Appeal No. 0120150179 (Nov. 16, 2017)

Both of these examples involved probationary employees, which is why they were decided by the EEOC – probationers do not have MSPB appeal rights over conduct-based terminations.

But, we see similar outcomes in MSPB cases as well. One important note in cases involving MSPB jurisdiction, is that the agency must consider whether the disability is a mitigating factor under Douglas factor 11. See Colon v. Navy, 58 MSPR 190 (1993). That said, even if the medical condition caused the misconduct, it still does not excuse the misconduct entirely.

Have a question? Ask FELTG.

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Ask FELTG: What should an employer be aware of when revoking telework as Reasonable Accommodation?

February 17, 2026

These questions came from a reader at an agency where there’s a recent directive to limit telework as disability accommodation as much as possible.

1) When an employee’s limitations are not significant and they don’t relate to the essential job functions – do you have any suggestions to ensure we’re meeting the needs of the employee and the agency?

As explained by EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, agencies are required to provide reasonable accommodation when an employee requires an accommodation to perform the essential functions of the job, unless providing the accommodation would cause an undue hardship.

If the employee’s limitations are not significant and do not impact his ability to perform an essential function, the employee is not entitled to a reasonable accommodation. The agency can, of course, choose to work with the employee to make him more comfortable within his minor limitations (if policy permits), but this is not required by law.

2) When an employee’s limitations are significant and telework is the most effective accommodation – any suggestions to potentially expand our leadership understanding of the need to provide telework when there are no other effective accommodations that support the employee’s limitations?

This one is easy to answer from a legal perspective. The agency, and not the employee, chooses the accommodation, and if an accommodation other than telework is effective (meaning it allows the employee to perform the essential functions of the job within his medical restrictions), the agency may select that option for the employee. See, e.g., Don S. v. BOP, EEOC App. No. 0120141175 (2016); Lia M. v. GSA, EEOC App. No. 0120141035 (2016).

But, if telework is the only accommodation that will allow the employee to perform the essential functions of the job within his medical restrictions, the agency must grant it unless doing so would cause an undue hardship. See, e.g., Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

So…what about the agency that revokes an existing telework accommodation, and replaces it with a different accommodation?

Considering the history of recent case law, the Commission does not look kindly on agencies that revoke an existing telework as accommodation agreement, and replace it with a different, less-effective accommodation. See, e.g., Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Req. No. 202200276 (Mar. 7, 2022); Linda A. v. Army, EEOC Req. No. 2023002848 (Sept. 18, 2023).

EEOC has also issued recent guidance that discusses the parameters of replacing telework with another effective accommodation.

Our best suggestion on convincing leadership of the wisdom of providing continued telework as accommodation: present them with EEOC case law, where agencies removed an employee’s telework accommodation and replaced it with a different, less effective accommodation. Perhaps they will be compelled by the outcomes, as these cases just about always go against the agency – and after damages and attorney fees can easily reach into the six figures.

Have a question? Ask FELTG.

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Ask FELTG: Does an agency violate a Federal employee’s due process when the same supervisor serves as both the proposing and deciding official?

February 3, 2026

Thanks for the question. Before we answer let’s do a quick overview of the due process requirements for Federal employees who are potentially being disciplined via an adverse action:

  1. Notice of the charge(s) and proposed penalty, presented by a proposing official (PO);
  2. An opportunity to respond to the proposal, and to be represented; and
  3. An impartial decision by a deciding official (DO).

5 USC §§ 7503(b); 7513(b).

In cases under Chapter 75, there is no requirement that the PO and DO be different individuals, and although most agencies do not assign both roles to the same person, it occasionally happens.

The Board has consistently held that it is not a violation of the appellant’s due process rights when the role of the PO and DO is performed by the same person because “[the] law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Department of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985). Even if a DO is familiar with the facts of a case – including an expressed predisposition to harsh punishment if the charge is proven – there is no due process violation as long as the discipline was not decided before considering the employee’s response. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). See also Robinson v. Department of Veterans Affairs 923 F.3d 1004 (Fed. Cir. 2019)(the fact that a Deputy Secretary served as both the PO and the DO did not violate the employee’s due process rights).

A quick note: 5 U.S.C. § 4303(b)(1)(D)(ii) requires the DO in a performance-based removal to be a higher-level official than the PO, unless the PO is the head of the agency.

As you can tell, the details matter, and we’ll discuss these nuances – and more – in several upcoming classes.

Have a question? Ask FELTG. info@feltg.com

 

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Ask FELTG: Is a complainant’s failure to cooperate a legitimate reason to dismiss an EEO complaint?

January 13, 2026

Thanks for the question. As you likely know, the Federal sector EEO process is time-consuming and convoluted. When a party doesn’t follow the rules – including failing to adhere to requests for information, or to meet deadlines – the case could be dismissed for failure to cooperate:

 

[T]he agency shall dismiss an entire complaint… Where the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of its receipt or the complainant’s response does not address the agency’s request, provided that the request included a notice of the proposed dismissal.

29 C.F.R. § 1614.107(a)(7).

But, not every failure to reply is evidence of failure to cooperate. Consider the following two cases.

Case Example 1: Casie S. v. VA, EEOC App. No. 2023003516 (Oct. 31, 2023)

The complainant, a Nurse Educator, filed a formal complaint alleging discrimination on the bases of race, age, and reprisal. The agency dismissed the complaint because, while it was timely received, it was not signed with a wet or digital signature. The complainant’s attorney disputed the agency’s dismissal, asserting he had signed the complaint electronically and was authorized to do so on behalf of his client. Id. at 2.

The EEOC pointed to 29 C.F.R. § 1614.107(a)(7) and stated such a dismissal should be made by the agency only when there is “a clear record of delay or contumacious conduct” by the complainant, and that while the parties disagreed on whether the attorney’s electronic signature was valid, the attorney had not engaged in contumacious conduct. Id. at 5. Therefore, the EEOC reversed the dismissal.

Case Example 2: Stella K. v. Commerce, EEOC App. No. 2023003570 (Sept. 18, 2023)

The complainant, an applicant, filed a formal complaint alleging discrimination based on race, disability, and age related to a nonselection. A week after she filed, the agency via certified mail sent her a Request for Information, asserting she failed to sufficiently detail the part of the complaint requiring a description of “the action(s) or policy(ies) you believe was (were) discriminatory…(b)e specific and include dates,” and requiring a response within 15 calendar days. Id. at 2. In the same mailing the agency informed the complainant if she failed to timely respond the agency may dismiss her complaint.

A few weeks later the agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(7), because the complainant failed to respond to its Request for Information. The complainant appealed, arguing she never received the mailing and never signed for it. She provided proof she “inquired with the mail carrier/residential building management about the Agency’s package..” and that “…she did not sign for the package and building management misplaced it, telling her it was returned to sender.” Id. at 3. She later learned that the letter was put in an incorrect mailbox, and once she located it she timely replied to the Request for Information.

EEOC sided with the complainant, finding she had sufficient reason for failing to respond, and ordered the agency to provide her with an added opportunity to clarify her claims.

These are just two examples, out of hundreds, and serve as a warning to be sure you are familiar with the regulations – and the cases interpreting the regulations – before your agency improperly dismisses a complaint.

Have a question? Ask FELTG. info@feltg.com

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.

Ask FELTG: What are the most significant changes to the rules for Federal probationary employees?

December 9, 2025

Here’s the full question that came into the FELTG email:

Dear FELTG:

There have been a lot of changes (and lawsuits!) related to probationary employees, reasons for their terminations, and potential appeal rights. What are the most significant changes we should be aware of?

And our response:

It certainly has been a year of change, and while those changes related to probationers are too extensive to list here, we’ll highlight three below. Please note, all this information comes from new Civil Service Rule XI found at 5 CFR Part 11 – which essentially replaced 5 CFR Part 315, Subpart H.

  1. There is no longer a requirement for agencies to provide due process to probationers who are being terminated for pre-appointment reasons.
  2. There is no longer an MSPB appeal right for probationary terminations based on marital status or partisan political activity (there previously has been under 5 CFR 315.806).
  3. The grounds for terminating a probationer for post-appointment reasons have been clarified and expanded. In addition to listing performance or conduct issues as valid reasons, additional justifications now include (a) the needs and interests of the agency, (b) the organizational goals of the agency or the government, and/or (c) the efficiency of the service.

There are several additional changes, so we’d recommend reading the new rules for yourself, and attending an upcoming FELTG training class to ensure you’re updated with the very latest. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do you think about an agency putting an employee on notice leave following a proposed removal? Are you for it or against it?

September 16, 2025

Thanks for the question. According to OPM, notice leave – which was created as part of the Administrative Leave Act of 2016 – is permitted at an agency’s discretion, subject to statutory and regulatory requirements, when an agency determines an employee must be removed from the workplace during the notice period – which is the period beginning on the date the employee is provided a notice of proposed adverse action and ending on either (1) the effective date of the adverse action or (2) the date the agency notifies the employee that no adverse action will be taken.

According to 5 CFR § 630.1503, notice leave may be used when the agency determines that the continued presence of the employee in the workplace may:

  • Pose a threat to the employee or others;
  • Result in the destruction of evidence relevant to an investigation;
  • Result in loss of or damage to Government property; or
  • Otherwise jeopardize legitimate Government interests.

Before using notice leave, agencies must consider alternative options to avoid or minimize the use of paid leave, such as changing the employee’s duties or work location, or other alternatives such as:

  • Keeping the employee in a duty status by assigning the employee to duties in which the employee no longer poses a threat;
  • Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;
  • Carrying the employee in absent without leave status, if the employee is absent from duty without approval; and
  • For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).

If an agency determines the employee should be put on notice leave, it must inform the employee in writing – and we at FELTG believe that it could be written directly into the proposal notice. We also think that if an agency is proposing to remove an employee for performance or misconduct, keeping the employee at work would jeopardize legitimate government interests because the employee is already NOT performing his job, or is NOT following the rules. There’s probably no need attempt to determine who might be violent or who might steal something (a challenge in itself as humans can be notoriously unpredictable); keeping someone at work after they’ve done something that justifies removal is not in the best interests of the government. Of course, always check your agency’s policy to see what it says about use of notice leave. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.