Ask FELTG: If Metro is Closed, Is Telework a Reasonable Accommodation?

October 31, 2022

We recently received the following question: If a Metro station is closed for construction, does our agency have to accommodate a disabled employee who usually takes the Metro to work by granting temporary telework?

Thanks for the question. As in every reasonable accommodation case, the agency should follow the framework we teach in our classes, which mirrors the requirements of the law:

  1. Does the individual have a disability?
  2. Are they a qualified individual?
  3. Did they request accommodation?
  4. Did the agency engage in the interactive process?
  5. If there is a feasible accommodation, will it impose an undue hardship on agency operations?

There’s a fairly recent case in which this exact issue came up, Orlando O. v. USPS, EEOC Appeal No. 2020003910 (Dec. 7, 2021).

The complainant suffered from ulcerative colitis, which required him to be able to access a restroom with minimal notice. He took the subway to work every day, but the subway line he used would be closed for four months and the shuttle service that replaced the subway service did not provide restroom accommodations. The agency denied the telework request. It ordered the complainant to either report to the workplace or take sick leave. Because he was unable to come into work, he used 456 hours of sick leave, and reported back to work the day the subway re-opened. The EEOC found improper unnecessary delay of RA and that the agency failed to show granting telework would have caused an undue hardship.

We have no doubt your agency is dealing with other new, untested RA challenges. Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency November 17 for a lively discussion on how to address these challenges legally and efficiently.

Have a question? Ask FELTG.

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: Can Comments About Church Attendance State a Viable Claim of Hostile Work Environment Harassment?

October 10, 2022

Stating a claim is much easier than proving hostile work environment harassment. As we teach in EEOC Law Week, in order to prove a hostile work environment, the complainant must show she was subjected to unwelcome conduct, based on a protected EEO category (such as religion), and that the conduct was so severe or pervasive it altered the terms, conditions and privileges of employment to create a hostile or abusive work environment.

The best way to answer your question is to look at a case involving this very topic, Ricky S. v. USPS, EEOC Appeal No. 2019005078 (Sept. 30, 2019). In this case, the complainant alleged:

(1) The postmaster yelled and accused him of requesting medical (FMLA) leave to miss work on Sundays in order to really go to church;

(2) The postmaster threatened to send Postal Inspectors to his church to verify his presence in the services;

(3) The complainant was given a pre-disciplinary interview during which the postmaster yelled at him and accused him of missing work to go to church, and warned him that he could get fired for doing so; and

(4) The postmaster commented about the complainant on the work floor in front of co-workers, “I will work him so much that he won’t be able to pray!”

The agency initially did not accept the complaint, but the EEOC remanded and ordered the agency to accept the claim because, when viewing all of the complainant’s allegations together and assuming they occurred as alleged, the complainant stated a viable claim that the agency was required to investigate.

Remember, stating a claim doesn’t mean that hostile work harassment has been proven, it just means the agency must conduct an investigation – the next step in the EEO process. For more on this timely topic, join FELTG tomorrow (October 12) for a 60-minute session on The Latest in Religious Harassment and Discrimination Cases.

Have a question? Ask FELTG.

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: Is It OK to Screen Test Unvaccinated Employees Attending an Agency-wide Meeting?

September 6, 2022

As concern about the virus has waned, some agencies have started to allow employees to travel. And that serves as the backbone of this question.

Here are the details: A number of agency employees from several locations are gathering for an onsite meeting. Those attending are a mix of people with different vaccination histories. The question: Before the meeting, can those who are unvaccinated be screen tested to see if they’re carrying the virus?

The easy answer is no. Last month, the Biden Administration did an about face and instructed agencies to stop all COVID-19 testing aimed at unvaccinated employees.

This was a big change. The war against COVID has shifted, and unvaccinated employees will no longer be treated differently from those who have received the vaccine. Screen testing is on the way out, except, as recently updated Safer Federal Workforce Task Force guidance states, at “those [facilities] identified by agencies for high-risk settings.”

This begs another question. Could the meeting be a high-risk setting? And could our Ask FELTG reader use that designation to screen test unvaccinated attendees?

Well, maybe, and no.

You may think your meeting is high risk, but it’s not your decision to make. The recent guidance states whether a situation is high risk is determined following consultation with the agency COVID-19 Coordination Team, including the agency Office of General Counsel, and the Safer Federal Workforce Task Force.

And even if your meeting is deemed to be high risk, you still can’t limit testing to unvaccinated attendees. Per the Safer Federal Workforce Task Force:

When an agency has established a serial screening testing program for agency-identified high-risk settings, an agency should enroll all employees working in that setting (which could be a facility, multiple facilities, or certain roles, functions, or settings within those facilities), regardless of vaccination status. When serial screening testing is implemented, agencies must not differentiate among individuals on the basis of their vaccination status, pursuant to Executive Order 13991 and consistent with CDC guidance.

Stay with FELTG for latest guidance and join us for EEOC Law Week September 19-23, where COVID-related challenges will be one of many important topics discussed.

Have a question? Ask FELTG.

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 Tackles Two Questions About Reasonable Accommodation

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Q: An employee claims to have a family member with an underlying medical condition that makes him susceptible to severe COVID. May the agency ask for medical documentation about the family member’s condition, if that’s why the employee is seeking telework as a reasonable accommodation?

A: If the employee does not have a disability, then any step toward granting telework, including requesting medical documentation, is not part of the reasonable accommodation process because only qualified employees (or applicants) with disabilities are entitled to RA. See Key-Scott v. USPS, EEOC Appeal No. 0120100193 (2012).

You’ll need to check your agency’s policy for guidance about what is required to allow telework flexibilities for employees who live with individuals with underlying health conditions.

Q: If the agency grants telework as a provisional accommodation and it’s clear the accommodation is not working, how does the agency change the accommodation if the medical documentation states that telework is the recommended accommodation?

A: If the medical documentation recommends telework, the agency is not bound to provide telework if there is another affective accommodation that allows the employee to perform their job within their medical restrictions. If an accommodation is not working, then it is not an effective reasonable accommodation.

In a case where medical documentation recommends telework, at the outset the agency should request additional medical information related to the functional limitations the employee has, so that the agency can determine if an accommodation other than telework is appropriate.

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: Can Discipline Be Used as a ‘Prior’ to Aggravate the Penalty?

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A FELTG reader shared the following hypothetical scenario:

An employee is issued a decision to suspend dated July 1. The dates of the suspension stated in the decision are August 3-7.  If any misconduct that happens between July 1 and August 7, can that be considered as a “prior” offense in a future disciplinary action? 

Also, how are paper suspensions implicated in this type of scenario?

And FELTG’s answer:

Discipline may not be relied upon as a prior until it has been fully served. In the example above, the discipline is not a considered a prior until after the suspension ends on August 7, regardless of the dates the proposal or decision letter are issued. See Fowler v. USPS, 77 MSPR 8 (1997), which discusses this concept in detail.

If the action is a paper suspension, where an employee is “suspended” on days they weren’t scheduled to work, then it doesn’t count as a suspension UNLESS the agency has an agreement with the employee (in writing), or a union contract says, that the paper suspension carries the weight of an X-day suspension for the purposes of discipline.  Otherwise, the law at 5 USC 7501.2 requires a loss of pay in order for an action to meet the definition of a suspension.

Good luck, and remember to always check the calendar when relying on past discipline.

Have a question? Ask FELTG.

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: Can employee use sick leave for family member with health condition without invoking FMLA – and then PPL?

May 24, 2022

We receive a lot of questions about leave through Ask FELTG, and each situation seems to have its own unique challenge. The subscriber who asked this question further explained that the hypothetical employee was the father of a newborn.

FELTG Senior Instructor and resident Federal leave authority Barbara Haga jumped in to answer this one, and suggested we start first with the basics.

FMLA is a separate entitlement apart from sick leave. It doesn’t limit in any way an employee’s ability to use sick leave. Use of sick leave doesn’t detract from the number of hours in the FMLA or PPL (Paid Parental Leave) entitlement.

For family care, there are two sets of limits on how much leave the employee could use. These numbers assume an 80-hour pay period.

1. An employee can use up to 13 days or 104 hours in a leave year for care of a family member with a non-serious condition, such as seasonal flu, colds, allergies, etc.

2. An employee can use up to 480 hours in a leave year for care of a family member with serious health condition, such as cancer, stroke, or heart attack. Pregnancy and childbirth are considered serious health conditions. The leave year maximum is 480 hours, so any use from the 104-hour category must be deducted.

Barbara continued:

For use of family care sick leave, the employee must be caring for the individual with the medical condition. If the father in this scenario wanted to use sick leave, he could do so to care for the mother during her recuperation period. That time could not be used for care of a healthy child. The mother likely would have a 6- or 8-week recovery period, but the question would be for what portion of that period she would require care from the father. The agency has the right to ask for medical documentation to establish the need for care because this is a serious health condition. See 5 CFR 630.405(c).

Here are two scenarios. We’re using rough dates rather than counting out the actual hours as you would obviously have to do. These scenarios assume the father won’t exceed the limit due to any other use of family care sick leave at any other point in the leave year.

The mother’s due date is April 1, 2022. The father requests six weeks of sick leave to care for the mother immediately after the birth of the child.

Scenario 1. Medical documentation is requested, and the health care provider indicates the mother would require physical care for three of the six weeks. The father could use sick leave from April 1 to 22. He could invoke FMLA to begin the next workday (Apr 25) for 12 weeks and substitute 12 weeks of PPL. This would extend through roughly July 25. Total paid time off is 15 weeks.

Scenario 2. This time the health care provider indicates the mother will need care for the full six weeks. The scenario would change as follows: The father could use sick leave from 4/1 through roughly 5/16. The father could invoke FMLA with PPL substitution for 12 weeks beginning 5/17 which would run through roughly 8/17. Total paid time off is 18 weeks.

For guidance on how to handle all absence-related challenges, including those related to COVID-19, join us for FELTG’s Absence, Leave Abuse & Medical Issues Week June 5-9, 2023. Classes run from 12:30-4:30 pm ET every day. Register by May 26 for Early Bird pricing.

Have a question? Ask FELTG.

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: If an employee with a disability can perform his job at the worksite, why would telework as a reasonable accommodation be necessary?

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It wouldn’t be necessary, though the agency could still choose to grant telework as the accommodation if it wanted to. EEOC guidance suggests that the employee’s preference on accommodation should be considered, but ultimately the agency gets to choose the accommodation. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014); Jordan v. Secretary of Navy, EEOC Appeal No. 0120110907 (2012)

The only time an agency must grant telework as an accommodation is if:

1. The essential functions of employee’s job can be performed from home,

2. There is no other effective accommodation that would allow the employee to perform the job within their medical restrictions, and

3. Granting telework is not an undue hardship on the agency.

EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation; see also Dahlman v. CPSC, EEOC Appeal No.0120073190 (2010); Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

There may be times when an agency chooses to grant telework even though there might be an effective accommodation available at the worksite. For example, let’s say an employee has irritable bowel syndrome. The agency could provide the employee with a workstation close to the restroom, which would be an effective accommodation.

However, taking into account the fact that the restroom is not single-use and the fact that the employee needing to use the facilities in front of the employee’s coworkers might cause embarrassment, the agency might choose to grant the employee telework instead.

For more guidance, join Attorney at Law/FELTG Instructor Ann Boehm on May 11 for Managing Post-pandemic Reasonable Accommodation Requests and Medical Documentation, the second part of our three-part webinar series Navigating the Return to the Post-pandemic Federal Workplace.

Have a question? Ask FELTG.

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 Tackles Calendar Days in Suspensions and Holidays in FMLA and PPL

March 8, 2022

Sometimes to understand Federal employment law, you need an old-fashioned print calendar by your side, as these two recent Ask FELTG submissions illustrate.

We know that suspensions must be served as calendar days, not workdays, but how can we ensure that a suspension maximizes the workdays covered? Can we require that a suspension begin on a Monday so that a, say, 6-day suspension covers 5 workdays?

In the decision letter, the Deciding Official should state the specific date(s) the suspension will be effective, so beginning a suspension on a Monday is no problem at all as long as the letter indicates so.

For expert guidance on all things related to discipline, as well as performance and whistleblowing, register for one or more days of FELTG’s MSPB Law Week, held virtually March 28 – April 1.

Meanwhile, another reader asked about holidays while on Paid Parental Leave.

I read your post Ask FELTG: Are holidays counted as hours for Paid Parental Leave? Someone recently advised me that at my agency FMLA only gives us 12 administrative weeks and that they are counted towards holidays. When I returned from my PPL, I lost three days of PPL to holidays during my leave. What is the next step in addressing this? Is there an OPM hotline?

We huddled with FELTG Senior Instructor and FMLA expert Barbara Haga to offer further guidance to our reader.

FMLA (and, thus by extension, PPL) is only charged for days when employees are scheduled to work. Holidays do not count toward the 12-week entitlement if the employee is not scheduled to work on Federal holidays. Here is the regulation:

5 CFR 630.1203(e)

(1) Family and medical leave under this subpart is available to full-time and part-time employees. The entitlement to a total of 12 administrative workweeks of leave in connection with leave granted under paragraph (a) of this section must be converted to hours or days, as provided in paragraphs (e)(2) and (e)(3) of this section. Leave under paragraph (a) allows an employee to be absent during the employee’s scheduled tour of duty established for leave charging purposes. Such leave is not applied to days designated as holidays and other nonworkdays when the employee would be excused form duty. [Emphasis added.]

OPM has no role in adjudicating FMLA claims, and as far as we know they don’t have a hotline to report such concerns.

If showing this to the HR folks does not resolve the issue, an employee would have the ability to raise this through the relevant grievance procedure. If they are in a bargaining unit, they would file under the negotiated procedure if the CBA allowed it. If not covered by a bargaining unit, then the employee would use whatever administrative grievance process their agency provides.

Meanwhile, mark your calendar now for FELTG’s Absence, Leave Abuse & Medical Issues Week June 13-17.

Have a question? Ask FELTG.

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: Is an employee covered under FMLA when his adult child has a temporary inability to perform a daily activity?

January 31, 2022

Here’s a hypothetical scenario posed by a FELTG student: An adult child is involved in a car accident. The adult child will be undergoing a lengthy recovery period and, during that time, may not be capable of performing one of the activities of daily living (ADL). The prognosis is that eventually she will regain all functionality.

Is the employee/parent eligible to take FMLA for this adult child in this situation? Does the inability to perform an activity of daily living have to be permanent or could it be a temporary condition and still be covered?

FELTG’s answer:

To answer your question generally, in order to be eligible, the son or daughter (as defined by 5 CFR 630.1202) must be unable to perform at least three activities of daily living identified in the regulations, not one.

The requirements are that:

  • Son or daughter over 18 must first have a disability to be covered
  • Beyond that must be incapable of self-care because of the disability – requires active assistance or supervision of the parent

If there is a complete recovery, the parent may not have FMLA eligibility any longer. The adult son or daughter would have to continue to meet the definition of disabled in addition to the need for care for there to be continued coverage for the parent under FMLA.

Looking for more FMLA guidance? Join Barbara Haga this Thursday for the 90-minute webinar Deconstructing FMLA: Entitlement, Notice, and Medical Certification.

Have a question related to federal employment law? Ask FELTG.

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: How do you know if an employee really has PTSD and, if so, how do you accommodate it?

November 29, 2021

Unfortunately, there is a bit of skepticism in the workplace about Post-Traumatic Stress Disorder (PTSD), as demonstrated by this question received in a recent class taught by FELTG Instructor Shana Palmieri, LCSW.

PTSD is classified as an anxiety disorder that changes the body’s reaction to stress, affecting stress hormones and specific parts of the brain. It’s much more than an individual’s reaction to fireworks and other loud noises. “The interactions that trigger PTSD symptoms can be subtle and difficult to understand for individuals who have not had the experience themselves,” Shana explained.

Some potential manifestations could be avoidance of trauma-related stimuli, exaggerated self-blame, social isolation, difficulty connecting with others, irritability, difficulty sleeping, fatigue, and difficulty concentrating.

A quick recap of the reasonable accommodation process: The employee making the accommodation request must show that he is a qualified individual with a disability, and needs an accommodation in order to successfully perform the essential functions of the job. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

Just because the employee’s symptoms don’t mirror your perceptions of PTSD doesn’t mean they’re not real. Follow your agency’s reasonable accommodation protocol and engage in the interactive process with the employee. The specific reasonable accommodation will depend on the employee’s symptoms, but could include a modified work schedule, telework, increased privacy in the workplace, apps for anxiety and stress, or a white noise machine, just to name a few.

For more detailed information on PTSD and other employee mental health challenges, join Shana on December 9 from 1-3 pm ET as she teaches Managing Employee Mental Health Challenges During and After the COVID-19 Pandemic. See below for more details on the program.

Have a question? Ask FELTG.

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.