Effective ADA Accommodation: What are Federal Employees Entitled To?

Subway disabled sign with "Effective ADA Accommodations" over it

The Americans with Disabilities Act (ADA) requires federal agencies as employers to provide effective ADA accommodations for its employees. The law requires agencies to provide employees with accommodations that will allow the employee to perform the essential functions of the position – this is the definition of an effective ADA accommodation. However, if the employee cannot perform the essential functions even with the accommodation, the agency is not required to provide that accommodation. In that case, there would be no effective ADA accommodation for that employee.  This can mean that a federal employee who produces sub-standard work while being accommodated can be denied that accommodation in the future. Employees are required to participate in the ADA interactive process with their employer in finding an accommodation that works. The EEOC cases below illustrate how this works in practice.

An effective accommodation must allow the employee to perform the essential functions of the job

An effective ADA accommodation is one that allows the employee to perform the essential functions of the position. This requires federal agencies to provide their employees with various alternatives, such as teleworking, assistive devices, and leave, if those accommodations would allow the employee to perform the core functions of the job successfully. The EEOC has stated:

An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment.  EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship (revised October 17, 2002) at question 9.

An agency cannot ignore an accommodation that it does not want to provide if the accommodation is effective at enabling the employee to perform these essential functions.

In McCoy v. Department of Veterans Affairs, an education program manager in Utah was ordered to cease teleworking because the agency had determined that the overall teleworking program was not working. The employee requested a reasonable accommodation due to her multiple sclerosis (MS), which was unpredictable in its effects. This made it difficult or impossible for her to commute to work. Nevertheless, the agency failed to provide teleworking and labeled teleworking merely a ‘convenience.’ The EEOC, however, concluded that the agency failed to provide a reasonable accommodation. Teleworking was effective by allowing the employee to avoid commuting and continuing to work at home. The agency’s priority, bringing all teleworking employees back to work at the facility regardless of the reason, conflicted with the requirements of the ADA. An ADA accommodation that does not rise to the level of meeting the employee’s need is not effective. McCoy v. Department of Veterans Affairs, EEOC Appeal No. 01A20346 (May 12, 2003).

Employees who need an accommodation to work in the federal government are entitled to an accommodation that meets their needs and enables them to work. The ADA does not allow the agency to deny an employee an accommodation because it wants to apply a blanket policy to all its employees. When there is a conflict between an agency’s priorities and the employee’s need for an accommodation, the agency’s priority must give way to the accommodation.

“Effective” accommodation means that the employee is enabled to perform his job functions

A federal agency is not required to provide a reasonable accommodation where the employee is un able to perform his job at a satisfactory level. If the employee is failing to come to work on time or has attendance issues, the agency can view a request that could exacerbate these tendencies as ineffective if it impacts the employee’s work. In such a case, there is no effective ADA accommodation that allows the employee to

In Petition No. 0320150024, a patent attorney with OCD requested a reasonable accommodation of working at home via telework. Several managers testified, however, that the employee previously had issues with time and attendance while teleworking. The EEOC concluded that because the employee had prior difficulties that showed that he was unable to meet the basic functions of the job, the telework accommodation was not effective. The employee was not entitled to this accommodation. Petitioner v. Deborah Lee James, EEOC Petition No. 0320150024 (May 19, 2015).

Federal employees are entitled to a reasonable accommodation that will enable them to perform the essential functions of their position. If the employee would not be able to perform those functions with the accommodation, it is not effective. Agencies are not required to provide ineffective accommodations.

Performing the essential functions is a requirement even with an accommodation

The ADA does not require an agency to accommodate an employee if there is no possible “effective” accommodation—that is, where the employee cannot perform the essential functions of the job. In Charlie Love v. Donohoe, the employee was a janitor with the U.S. Postal Service. The employee requested  permanent light duty and requested that other positions in his locale be found. Based on the evidence, however, the EEOC found that the employee was unable to perform the essential functions of his position because of the restrictions caused by his disability. Therefore, the EEOC concluded that the employee was not entitled to an ADA reasonable accommodation. Charlie Love v. Donohoe, EEOC Case No. Appeal No. 0120093794 (Dec. 9, 2011).

Employees who are seeking an accommodation need to be aware that if they cannot perform the essential functions of the job, there is no effective ADA accommodation. This is the reverse of what “effective” means—an accommodation that permits the employee to perform the essential functions of the job. In such a case, like in Charlie Love, the employee is not entitled to any ADA accommodations because there is no effective ADA accommodation.

The agency can choose among effective accommodations, not necessarily  the employee’s favored accommodation

An employee is entitled to an “effective” accommodation, but if there is more than one effective accommodation, the agency may choose which to provide. The Agency ultimately has the final say in what effective accommodation is provided:

It is the [EEOC’s] position that if more than one accommodation is effective, “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.” 29 C.F.R. § 1630.9

In Schulz v. Potter, a custodian suffered from sinusitis and allergies because of workplace dust. He requested that the agency provide a mechanical-filtered respirator. However, the agency only provided a dust mask. The EEOC concluded that the dust-mask was at least minimally effective, and therefore the custodian was not entitled to the accommodation of his choice. Schulz v. Potter, EEOC Appeal No. 0120073186 (Jan. 15, 2008).

In Glenda Wearre v. Panetta, an accounting technician requested to be moved away from certain smells and smokers in her workplace. The agency moved the employee once. When that location did not work, the agency offered numerous other locations. The employee rejected all of these, but never explained why they were not effective. The EEOC concluded that the employee was not entitled to the accommodation of her choice, so long as the accommodations offered were effective. The employee had rejected the accommodations without explanation. Hence, she could not demonstrate that the offered accommodation was not effective. Therefore, she was not entitled to further accommodation. Glenda Wearre v. Panetta, Appeal No. 0120100926 (Jan. 5, 2012).

Finding an effective accommodation can be a process, and managers often do not understand this

Employees are entitled to be accommodated. This often means in practice that an employee may have to try out different accommodations to find one that works, or the employee may have to explain why the accommodations offered by the Agency do not work for that employee.

Federal employers often do not understand these requirements. Supervisors rely on advice from Labor-Management Relations Specialists who may not be aware of all of the circumstances of an individual’s case. Managers can often ignore unseen but very real disabling issues for employees. The EEOC case law features many cases where supervisors ignored employees’ requests for reasonable accommodation because they thought all employees had to be treated the same. Knowing the right approach is critical to complying with the ADA.

Teleworking up to 100% of Work Time can be Required for Federal Employees under the ADA

Teleworking from home

Recently the federal government has sought to limit telework for federal employees. However, the ADA still requires agencies to provide telework, even 100% telework, to disabled employees who need it. Many Managers often wrongly assume that working from home is not really working. Managers often use spurious excuses to prevent employees from using telework. The Americans with Disabilities Act (ADA) requires federal agencies to offer disabled employees telework if they need it. Two recent cases show that federal agencies who try to prevent disabled workers from teleworking face serious sanctions for failing to provide reasonable accommodations.

100% Telework can be required under the ADA

In 2015, the EEOC required the Department of Housing and Urban Development to compensate an employee who requested telework because of his Ankylosing Spondylitis. This condition made it painful for the employee to drive long distances to and from work. He therefore requested to work 100% telework. HUD argued that the functions of the position required the employee to be on the road to check in on troubled housing locations and to come into the office for meetings with colleagues. The EEOC rejected these arguments, noting that the evidence contradicted that these were serious concerns justifying denying telework. Mail could be scanned and emailed to the employee and meetings could be attended effectively by phone. Therefore, the agency violated the ADA by not providing 100% telework. See Lavern B. v. Castro, EEOC Appeal No. 0720130029 (Feb. 12, 2015).

Telework can be combined with a lateral move to meet ADA requirements

In another recent case, the EEOC required the Department of the Interior to compensate an employee because it had not considered a teleworking accommodation in conjunction with offering him a different position. The employee in this case had a similar disability preventing him from driving long distances. Before litigation, the agency offered the employee two potential alternative worksites. Because driving to these worksites would violate his medical restrictions, the employee declined the moves. The agency then terminated the employee. The EEOC found that if the agency had continued to work with the employee to find an accommodation, as it was required to do, the agency could have offered the employee the two positions and telework 100% of the time. This would have accommodated his needs and met the agency’s obligations. The EEOC stated:

In allowing an employee to telework[,] an employer “may need to reassign some minor job duties or marginal functions . . . if they cannot be performed outside of the workplace.” . . . [A]n employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. [] Frequently, meetings can be conducted effectively by telephone and information can be exchanged through e-mail. Harvey G. v. Jewell, EEOC Appeal No. 0120150844 (Feb. 4, 2016).

Federal agencies should be model employers in providing accommodations, including telework

The EEOC has reminded agencies that federal agencies are not just any employer—they are to serve as models for the rest of the American workforce. Telework is becoming a reality for many federal agencies, despite recent attempts to limit federal employees from working from home. Many federal agencies assume, often without evidence, that working from home is not really working. But even if the agencies severely limit teleworking, the ADA still requires agencies to provide teleworking as an accommodation for disabled employees.

If you feel that you have been denied a reasonable accommodation or have otherwise been discriminated against, contact a lawyer  experienced in handling EEO matters for federal employees. You have a limited time to contact and EEO counselor.

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