Disability (Rehabilitation Act)

I would argue that your commute is not the Government's problem. You have the ability to resolve it without Government intervention. I'd authorize you a standing desk though. I guess it doesn't hurt to ask.

Hey guys,

As some of you may know, there are plenty of government agencies cutting back on telework right now. My coworkers and I just got cut back to 1 day a week. Anywho, I was wondering if anyone has successfully submitted an RA request for telework. I was thinking of requesting 3 days a week for two reasons:

1. I have back issues and a 90 minute (each way) commute into the office. Sitting that long, then sitting again at my desk is excruciating.

2. I have sleep apnea and live at 7000 feet. Sleep apnea (I just learned) is worse when you live at altitude. This makes me very tired and I feel like I might fall asleep during my long commute (it's pretty bad, and I have to drink coffee, drive with the windows down, and chew gum just to try not to fall asleep, especially in the afternoon).

Obviously I can work remotely, and I had been doing so twice a week until recently. What do you guys think my chances are?

Just playing the devil's advocate, here are some things I'd expect you to be asked.

1. How will you work at home differently than at work? If sitting for a long period is uncomfortable, will you be using a standing desk at home? Any accommodation you make at home could be made in the office.

2. It's only during your commute that you feel sleepy? Not the rest of the day? I'd expect you to get some questions about how you intend to stay awake during working hours.

You could argue that, but would be wrong, especially based on the case law that exists.

A commute (to a point) can be a consideration in a RA request, especially if said commute exacerbates the underlying medical condition.

In this case, the back being the primary issue impacted by the commute, telework M/W/F may be a suitable accommodation.

I would recommend a 90 day trial to see if your productivity meets or exceeds the requirements for your position, with an acknowledgement that there may be days I need to come in on a telework day due to presentations or meetings that need to be done in person. If the trial shows you are meeting the requirements, then it should be reviewed annually (not necessarily getting medical docs every year, but to ensure both you and the supervisor are on the same page with expectations, etc. Maybe updating medical docs every couple or three years).

Go back to your doctor or perhaps even find a new one. Are they monitoring the telemetry off the cpap? The Resmed autoset 10 models all have a cellular modem in them that your doctor can pull the telemetry off off. I have a cpap myself. Its the last generation where i have to bring the SD card in to the doctor to look at. If your cpap is not properly treating your issues, then perhaps there needs to be some changes. Just from my experience, they gave me a full face mask at first and that was even worse, I could not breathe at all. I had to request a nose pillow mask. My point here isnt that you needed one or the other, but that I needed one or another and the first doctor was unaware that there was that much difference and that it was anything more than an issue of one is "more comfortable" than the other. (some people have issues where their airway closes during sleep and they cannot inhale. Some (like me) have an issue where the airway closes on exhalation and they cannot exhale.) Im sure there are many other subtle variations of sleep apnea and many various ways of dealing with that. It may be a matter of finding a doctor thats more informed about these things,even if they are supposed to be a sleep specialist.

I would be VERY VERY careful about saying anything about this to anybody at work. Its possible that you will have very understanding supervisors that will want to help you. Its by far more likely that you will have unhelpful supervisors that you wont. Ive seen this stuff happen to people. (after seeing that, I make sure to keep my mouth shut about any health issues) Its quite likely that if you tell them that your having sleep problems that make you tired,that it will fundamentally change the way that you are perceived at work. Everything you do that has even a whif of not being 100% PERFECT will begin to be perceived as due to the disability you have disclosed. If you so much as yawn in view of management, they will start saying "Look there, hes always asleep at work" , any mistake you make is because your "virtually asleep at the wheel". Dont EVER be late, because they will be looking for it, because your the guy whos "always late except when he falls asleep at his desk the night before" Even if your a model employee and were only late once, that will define the narrative. Imagine your called into the supervisors office. Your accused of being late "all the time". You try to defend yourself, "Im always on time, tell me, when am I 'always late'" He points out two specific dates. Those are the ONLY times in the last 5 years. Once because someone t boned your car at an intersection when driving to work, and once because your wife woke up with chest pains and you were in the emergency room until 10am in the morning, but still came in to work. That is how discrimination for a disability works and there is little you can do when it happens except tread water and try to find a new job. DOnt go there.

"Request for Reasonable Accommodation

Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) ( Enforcement Guidance on Reasonable Accommodation). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m).

A reasonable accommodation must be effective. SeeU.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) ("the word 'accommodation'. . . conveys the need for effectiveness"). That is, a reasonable accommodation should provide the individual with a disability with "an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability." 29 C.F.R. Part 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, "the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide." Id.; see also Enforcement Guidance on Reasonable Accommodation at Question 9. "The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability." 29 C.F.R. Part 6130 app. § 1630.9.

Allowing an employee to telework is a form of a reasonable accommodation. "An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship." An "undue hardship" is a significant difficulty or expense in light of the agency's circumstances and resources. See 29 C.F.R. § 1630.2(p). The agency bears the burden of establishing, through case-specific evidence, that a reasonable accommodation would cause an undue hardship. U.S. Airways, Inc. v. Barnett, 535 U.S.at 402. "Generalized conclusions will not suffice to support a claim of undue hardship." Enforcement Guidance on Reasonable Accommodation, "Undue Hardship Issues." An employer may deny an employee's request to telework if it can show that an alternative accommodation would be effective or that telework would cause an undue hardship. Enforcement Guidance on Reasonable Accommodation, at Question 34. The agency has a burden of production to show that there is an effective alternative accommodation.

In this case, we find that Complainant is a qualified individual with a disability. Complainant's back and feet impairments substantially limit his ability to sit, stand, and walk. Further, the record establishes that he meets the skill, experience, education, and other job- related requirements of his Human Resources Program Manager position and that he can perform the essential functions of his position.5

Complainant initially requested in December 2012 to work from home three days per week as a reasonable accommodation, based on a note from his doctor. The Agency requested additional medical information, which Complainant provided. Complainant and the Agency's DPM exchanged emails in early February to devise a telework plan. Complainant submitted a telework plan to the Agency's DPM on February 8, 2013, and modified his request, asking to work remotely for two days per week. The Agency denied Complainant's request for two days of telework per week and instead offered him one day. DPM stated in the Resolution of Reasonable Accommodation Request form that the Agency denied the requested accommodation because of "[i]nsufficient medical evidence."

DPM's statement that there was no correlation between Complainant's chronic pain and the performance of his job duties does not address his doctor's statement that not commuting would improve Complainant's blood pressure and pain control. To the extent that the Agency believed that it did not need to provide an accommodation related to commuting, the Agency was mistaken. The Commission has held that a request for telework or a shorter commuting time because of a disability is a request for reasonable accommodation and triggers an agency's responsibility under the Rehabilitation Act. See, e.g., Jody L. v. Dep't of the Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018) (agency violated the Rehabilitation Act when it denied complainant's request for situational telework due to inclement weather); Doria R. v. Nat'l Sci. Found., EEOC Appeal 0120152916 (Nov. 9, 2017) (agency's ten-month delay in granting complainant's request for additional telework days violated the Rehabilitation Act); Hupka v. Dep't of Def., EEOC Appeal No. 02960003 (Aug. 13, 1997) (agency violated Rehabilitation Act when it refused to allow complainant whose long <commute exacerbated his disability to work at home or at a local alternative work site).

The Agency asserts that it provided Complainant with an effective accommodation when it offered to allow him to telework one day per week. We disagree. Complainant submitted two doctor's statements - the December 10, 2012, note and the December 26, 2012, Medical Questionnaire - that expressly stated that Complainant should telework three days per week. Nothing in the medical documentation stated that only one day of telework per week would be sufficient, nor has the agency offered other evidence to support its contention that one day of telework would be an effective accommodation.

We note that, under the Rehabilitation Act, it is anticipated that, to the extent necessary, the employer will engage in the interactive process with the individual requesting accommodation to clarify the individual's needs and identify the appropriate reasonable accommodation. 29 C.F.R. § 1630.2(o)(3). However, failure to engage in the interactive process does not constitute a violation of the Rehabilitation Act. Employer liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the individual with a disability to perform the essential functions of the job. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002) (although agency cannot be held liable solely for failure to engage in interactive process, it can be held liable where failure to engage in process resulted in failure to provide reasonable accommodation), request to recon. denied, EEOC Request No. 05A30114 (Jan. 9, 2003). Similarly, employer liability may be avoided where failure of the requesting individual to engage in the interactive process results in the parties being unable to identify an effective accommodation. See Estate of William K. Taylor, Jr. v. Dep't of Homeland Sec., EEOC Appeal No. 0120090482 (June 20, 2013) (complainant's failure to provide requested documentation caused failure to receive possible accommodation), request to recon. denied, EEOC Request No. 0520130591 (Jan. 16, 2014).

DPM stated that, on February 19, 2013, she arranged a meeting for that day to discuss with the Complainant and S1 the offer of one day of telework per week as an accommodation. Complainant did not attend, stating that he had a scheduling conflict and did not see the meeting notice until after the meeting had occurred. Neither DPM, nor S1, nor Complainant attempted further communication regarding Complainant's requested accommodation.

This is not a typical case where a party fails to engage in the interactive process, causing a lack of effective accommodation where one could have been found. Compare Melani F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720150027 (Mar. 15, 2016) (agency, which failed to engage in interactive process, violated the Rehabilitation Act when it denied complainant's request for a reader), and Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002) (although administrative judge incorrectly held agency liable for failing to engage in interactive process, finding of liability upheld where, had agency engaged in process, it could have identified suitable vacancies), with Bryan R. v. U.S. Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015) (no violation found where, even if agency had engaged in interactive process, the parties would not have found an accommodation that would have enabled complainant to perform essential functions). Rather, the Agency here had information from Complainant's doctor identifying what was, in his opinion as a medical professional, the effective accommodation for Complainant's disability. The record reflects that the DPM did not inquire of the doctor, nor request Complainant to provide a note from the doctor addressing, whether one day of telework per week might provide an effective accommodation. We therefore conclude that the Agency's ability to provide accommodation was not hindered by Complainant's absence from the scheduled meeting, and turn to the matter of undue hardship.

The Agency has not shown that allowing Complainant to telework three days per week would have resulted in an undue hardship. DPM's mere assertion that the requested accommodation would have caused an undue hardship because of its impact on "the operation of the department" and "business operations" does not establish that the accommodation would have resulted in a significant difficulty or expense. DPM stated in the Resolution of Reasonable Accommodation Request form that Complainant's work on the DEU program and health-unit operations required on-site interactions, but she has not explained why she believed that to be the case. Further, she has not refuted Complainant's assertions, in his February 13, 2013, email, that the DEU program was inactive, that he had performed DEU work from home in the past, and that he visited the health unit only five times per year.

Similarly, S1 did not explain why she believed that Complainant's assignments required his physical presence in the office. There is no explanation why Complainant's work, to the extent that it involved interactions with others, required in-person rather that e-mail or telephonic communication. Complainant's deposition statement that he needs to interact with people likewise does not establish that he needed to be physically present in the office. Further, as the Agency acknowledges in its appellate brief, "it appears that [S1] improperly considered [Complainant's] job performance in her assessment of [Complainant's] accommodation request." S1's references to Complainant's alleged need to improve his work habits may be correct, but that is not the issue before us here, which is whether the requested accommodation, if implemented, would result in an undue hardship. An employee would still be required to meet all performance requirements even with the accommodation of telework. The issue before us is whether the Agency could have accommodated Complainant's disability without incurring an undue hardship, not whether Complainant's performance merited special privileges. Reasonable accommodation is a right, not a privilege.

The Agency argues that Complainant cannot prevail on his claim because he did not engage in the interactive process. The record, however, does not show that Complainant's actions were responsible for the Agency's decision to offer one day of telework instead of the requested two days. Complainant's nonattendance at the February 19, 2013, meeting could not have affected the decision; DPM scheduled the meeting after she issued the Resolution of Reasonable Accommodation Request form. DPM stated in the form that the Agency would review the accommodation in 120 days, but she gave no indication that the Agency would reconsider its decision before that date. Certainly, it would have been preferable for Complainant to follow DPM's February 1, 2013, suggestion that he meet with S1 to discuss his work assignments and telework request. It would also have been preferable if both Complainant and the Agency had sought to communicate after the process broke down. That Complainant did not do so, however, does not release the Agency from its obligation to provide Complainant with an effective, reasonable accommodation absent undue hardship. As discussed above, the Agency did not meet its obligation.

This is not a situation, like that in Koch, where "complainant refused to provide specific information about the precise nature of his medical condition and/or the exact accommodation it necessitated." Id., at 13. Complainant's doctor completed the Medical Questionnaire, identified Complainant's impairments, and recommended that Complainant telework three days per week. DPM stated in the Resolution of Reasonable Accommodation Request form that Complainant's medical evidence was insufficient, but she did not explain what was lacking. Moreover, there is no evidence that the Agency requested additional information about Complainant's disability or need for reasonable accommodation. Accordingly, we find that the Agency discriminated against Complainant on the basis of disability when it denied his request for the reasonable accommodation of three days of telework per week.

We note that, on appeal, the Agency states that it ultimately granted Complainant's initial request for three days of telework. It is not clear when the Agency might have done so. The Agency's statement that it offered Complainant three days of telework per week is an admission, however, that this accommodation would not have entailed undue hardship. To ensure that Complainant receives the appropriate remedy, we will order the Agency to provide him with the reasonable accommodation of three days of telework per week.

Where a finding of discrimination involves a failure to provide reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the complainant with a reasonable accommodation. 42 U.S.C. § 1981a(a)(3); see alsoJones v. Dep't of Agric., EEOC Appeal No. 0120080833 (July 18, 2012); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). Here, the Agency offered Complainant only one day of telework per week even though his doctor specifically recommended three days of telework, and Complainant requested two days per week. Although DPM encouraged Complainant to meet with S1 "to discuss teleworking 3 days per week," she did not indicate that the Agency had any questions about whether fewer telework days would meet Complainant's needs. There is no evidence that the Agency sought information from Complainant or his doctor to determine whether only one day of telework would be effective. Instead, DPM appears to have substituted her judgment for that of Complainant's doctor and determined that one day of telework would be sufficient to accommodate his disability. Under these circumstances, we find that the Agency did not engage in good-faith efforts to accommodate Complainant.

I eventually went to 100% teleworking as a reasonable accommodation, as I could perform all of the essential duties of my position remotely. You will need to submit medical documentation supporting your request. A primary decision point is whether your back condition was present prior to your hiring to an “on-site” position or has now worsened to the point of becoming a disability limiting your ability to commute every day. The daytime fatigue due to sleep apnea may be more difficult to document unless you have O2 sat data demonstrating persitant desaturization despite therapy—which would suggest the therapy is not adequate.
It is true that the lower PO2 levels at higher altitudes can result in patients requiring higher CPAP/BIPAP pressures; however long term exposure should result in increased Rbc’s (increased o2 carrying capacity)—acclimization