What happens when an employee is injured, either on the job or outside of work, and is expected to recover soon but needs accommodations so he can return to work? Many federal employees face just such a situation. Employees who are injured or become sick often are forced to stay home instead of working, sometimes for months on FMLA (family and medical leave).
Federal employees often have to use their own leave or even take leave without pay (LWOP). They are caught in a catch-22—they can’t go to work and they can’t afford to stay home. Illnesses such as Long Covid or auto accidents can cause severe but not necessarily long-lasting impacts on their physical abilities. Can reasonable accommodations help to get these people back to work?
We need to expand our understanding of what a ‘disability’ is
The answer is yes, but too often they do not ask for accommodations or management denies accommodations. Many people who do not have the kinds of limitations that we associate with “disabilities” do not consider requesting accommodations. They should.
Another problem is that management and human resources personnel often do not associate temporary injuries with “disabilities” under the disability laws. Many managers do not understand that a the disability laws cover a variety of different medical conditions, including mental health conditions such as PTSD, anxiety and depression, and painful medical conditions that are not outwardly visible, such as back-related injuries and arthritis.
Recent cases from the federal courts make clear that the ADA and the Rehabilitation Act, which are also known as the “disability laws,” make it possible for employees with injuries and illnesses to request reasonable accommodations that employers are required to provide. These same rules apply to federal agency employers, such the Department of Veterans Affairs, the U.S. Postal Service, and the Department of Defense.
The law changed in 2009 to expand the definition of disability.
Prior to 2009, the courts interpreted the disability laws in a way that excluded many disabilities that were not permanent or long-term. In 2009, Congress amended the law to expand the definition of disability. Under that expanded definition, federal courts have been finding that some non-permanent illnesses and injuries qualify for disability protections.
A key aspect of these disability protections is the right to reasonable accommodation. Under the disability laws, an employee has a right to a reasonable accommodation if he has a “disability.” This can include teleworking and ergonomic equipment in the workplace, as well as intermittent leave for flare-ups.
Employers who refused to provide reasonable accommodations because they do not believe that an employee has a “disability” run the risk of engaging in disability discrimination by failing to provide a reasonable accommodation.
Recent cases confirm that short-term disabilities can qualify for reasonable accommodation
In a recent case before the federal Second Circuit Court of Appeals (Hamilton v. Westchester Co., 3 F.4th 86 (2d Cir, 2021)), which covers some states in the Northeast, the court found that temporary injuries and disabilities that last less than six months could still qualify for protection under the ADA.
This follows a 2014 case in the Fourth Circuit Court of Appeals (case: Summers v. Altarum Inst. Corp., 740 F.3d 325, 329 (4th Cir. 2014)), which covers much of the mid Atlantic. That case found that an employee who broke his legs, and was recovering from this temporary injury, was “disabled” within the meaning of the ADA.
What these cases mean is that an employee can claim some short-term disabilities as a reason for requesting and receiving a reasonable accommodation. Reasonable accommodations can help employees whose injuries or illnesses are not long-term return to work. An employee would not have to burn through leave or go on leave without pay to cover an extended absence from work that otherwise could be accommodated.
It would also legally prevent discrimination based on that disability. It would make it illegal, for example, for an employer to terminate an employee because he had Long Covid in the past.
Most likely, not all injuries that are not long-term will qualify under the disability laws as “disabilities.” Stated another way, whether an employee is entitled to a reasonable accommodation under the disability laws will likely depend on the specific medical condition.
Asking for reasonable accommodations
These cases should give some hope to employees who have suffered injuries or who have short term medical conditions that restrict their ability to work. Reasonable accommodations are simple to request. The EEOC states that an employee need only state that she has a medical condition that requires a change in the workplace in order to get the ball rolling. Retaliating against an employee for requesting a reasonable accommodation is also illegal.
This does not mean that every illness or injury will qualify as a disability under the disability laws. However, for those who have temporary injuries that are preventing them from working, getting a reasonable accommodation may mean the difference between being able to work and not.
If you believe that you have been entitled to a reasonable accommodation due to your medical condition at your federal agency employer, contact an attorney to discuss your rights. You may have a limited time to contact an EEO counselor, as little as 45 days from the denial.