Disability Pain Must be Accommodated by Agencies

A frequently overlooked aspect of disability accommodations is pain. Many federal employees who have requested reasonable accommodation experience moderate or severe pain even after accommodation. Pain can be a significant issue in obtaining the right accommodation. 

Pain is also invisible. Many individuals have no way of describing the pain they are experiencing adequately. Many employees have accustomed themselves to hiding pain out of fear and embarrassment. 

Pain can be a significant factor

But pain needs to be part of a reasonable accommodation request and the resulting accommodation if it is a significant factor. Federal agencies are required to accommodate not just what the limitations imposed by a disability itself, but also the pain associated with the disability. 

The EEOC recently found that the Agency was liable for not accommodating an employee’s pain when it failed to provide full-time telework as a reasonable accommodation for his back pain related to Ankylosing Spondylitis, a permanent inflammatory disease that that can cause some of the vertebrae in the spine to fuse together, making the spine less flexible and resulting in a hunched-forward posture.

Changes in Pain Change the Accommodation need

The key issue in the case was that the employee’s pain increased over time even though there was not any other change in the underlying cause of the disability. He obtained a letter from his doctor explaining why he was updating his accommodation request for the pain, including for full-time telework. 

The Agency argued that the employe needed to be in the office for trainings and meetings, and he had to attend on-site visits. However, the EEOC noted in the last eight years, the employee only performed one on-site visit. The EEOC held that under the circumstances of the increased pain, the Agency failed to accommodate the employee’s disability with 100% telework.

The EEOC specifically decided: 

Commission precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act. . . . [A]n employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, as long as this accommodation would be effective and would not cause an undue hardship.

Complainant requested that the Agency allow him to telecommute 100 percent of the time . . . . his medical condition rendered him unable to commute the very long distance from his home to Minneapolis on a regular basis. . . . Complainant only needed to attend an occasional training or conference in-person . . . .

[W]e find that substantial evidence . . . that Complainant’s requested accommodations would not constitute an undue hardship on the Agency and, therefore, the Agency denied him a reasonable accommodation for his disability.

Lavern B. v. HUD, EEOC Appeal No. 0720130029 (Feb. 12, 2015).

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