Disability Discrimination and Reasonable Accommodation: Medical Inquiries, Leave and Telework

Articles On Equal Employment Opportunity Law

Fiscal Year 2022

November 2021

Office of Federal Operations

______________________________

This article is a publication of EEOC’s Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO
Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Editor: Robyn Dupont

Writers: Craig Barkley & Robyn Dupont

This article is available online through EEOC’s homepage at www.eeoc.gov/digest.

The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website at https://www.eeoc.gov, as well as on Commission case law and court decisions.

Overview of the Law

Federal employees and applicants are protected from discrimination based on disability under Sections 501 and 502 of the Rehabilitation Act, as amended.[1] Disability discrimination can occur when an agency treats a qualified employee, or applicant for employment, with a disability differently than other individuals who do not have a disability; or when an agency fails to reasonably accommodate a qualified employee or applicant with a disability. Disability discrimination can also occur when an agency treats individuals with a history of a disability less favorably than others, or when an individual the agency perceives to have a disability is treated less favorably. The Rehabilitation Act and the Americans with Disabilities Act (ADA) [2] forbid discrimination with regard to any aspect of employment, including, but not limited to hiring, firing, pay, job assignments, promotions, training, benefits, and any other term or condition of employment.[3]

The federal government is charged with being a “model employer” of individuals with disabilities.[4] Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, federal agencies have a legal obligation to provide reasonable accommodations for their qualified employees and job applicants with disabilities unless the Agency can show that reasonable accommodation would cause an undue hardship.[5] This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees.[6]

To determine whether an individual qualifies for a reasonable accommodation, the individual needs to meet the ADA definitions of “individual with a disability” and “qualified individual with a disability.” The meaning of “disability” has significantly changed with the ADA Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the ADA and the Rehabilitation Act. The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA.[7] Consistent with the ADAAA's purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.[8] The primary object of attention in cases brought under the ADAAA should be whether agencies have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.[9]

Under EEOC regulations implementing the ADAAA, an individual with a disability is one who: has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.[10] In general, major life activities include, but are not limited to: caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, and the operation of a major bodily function.[11] An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. Pursuant to the ADAAA, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.[12] A determination of whether an individual’s impairment substantially limits a major life activity requires an individualized assessment.[13] Such a determination, however, shall be made without regard to the ameliorative effects of mitigating measures.[14] However, in keeping the primary focus of the ADAAA, i.e., whether discrimination occurred, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.[15]

The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skills, experience, education, and other job-related requirements of the individual’s position, such that the individual can perform the essential functions of the position with or without reasonable accommodation.[16] “Essential functions” are the fundamental duties of a job, that is, the outcomes that must be achieved by someone in that position.[17] An agency is required to make reasonable accommodations to the known limitations of a qualified individual with a disability, unless the agency can show that doing so would cause an undue hardship.[18]

Issues of Particular Note

Medical Inquiries and Examinations

The ADA limits an employer’s ability to make disability-related inquiries or require medical examinations.[19] The ADA prohibits employers from making disability-related inquiries and conducting medical examinations prior to making a conditional offer of employment, and permits such inquiries and examinations after an applicant is given a conditional job offer[20], but before the individual starts work only if it requires the same inquiries and examinations for all entering employees.[21] After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The ADA makes clear that the restrictions on inquiries and examinations apply to all employees, not just those with disabilities.[22] Only disability-related inquiries and medical examinations are subject to the ADA’s restrictions.[23]

A “disability-related inquiry” is a question or series of questions that is likely to elicit information about an individual’s disability.[24] Disability-related inquiries may include asking an employee whether he/she has or ever had a disability, inquiring about the nature or severity of an employee’s disability, or asking an employee to provide medical documentation regarding his/her disability.[25] Questions about an employee’s genetic information, prior workers’ compensation history, and prescription medication usage past or present, as well as broad questions about an individual’s impairments can also be considered disability-related inquiries.[26] Questions that are not likely to elicit information about a disability, such as general questions about an employee’s well-being, inquiries about non-disability-related impairments such as a broken leg, or questions regarding whether an employee can perform job functions, are not disability-related inquiries and are permitted under the ADA.[27] All information about an individual obtained through a medical inquiry or examination must be kept confidential.[28]

A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health.[29] Several factors should be considered when determining whether a test or procedure is a medical examination including: (1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or physiological response(s) to performing the tasks; (6) whether the test is normally given in a medical setting; and (7) whether medical equipment is used.[30] Medical examinations include, among other things, vision tests, blood tests, range of motion tests, pulmonary function tests, and diagnostic procedures such as x-rays or other imaging tests.[31] There are a number of procedures and tests employers may require that generally are not considered medical examinations. These include, but are not limited to, tests to determine the current use of illegal drugs, physical agility and physical fitness tests, and polygraph examinations.[32]

An employer may make disability-related inquiries or require a medical examination only if they are “job-related and consistent with business necessity,” meaning that an employer has a “reasonable belief, based on objective evidence”[33] that: (1) the employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat to him/herself or others.”[34] Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity. In addition, periodic medical examinations and other monitoring under limited circumstances may be job-related and consistent with business necessity.[35] For example, an employer may be able to require periodic medical examinations of employees in positions affecting public safety.

To determine whether an employee poses a direct threat[36], the following factors should be considered: (1) the duration or the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.[37] Direct threat determinations must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence.[38]

For example, in Francine M. v. U.S. Postal Service,[39] Complainant provided credible evidence that her Postmaster asked if she was dyslexic in front of a customer. The Commission concluded that the Postmaster’s statement constituted an improper medical inquiry in violation of the Rehabilitation Act. The Agency failed to show that the Postmaster’s query was job-related and consistent with business necessity, because it did not show that the Postmaster believed that Complainant’s ability to perform the essential functions of her position was impaired or that Complainant posed a direct threat due to a medical condition.

In Dixie B. v. Department of Veterans Affairs,[40] the Commission found, among other things, that the Agency subjected Complainant to an unlawful disability inquiry when it requested additional medical documentation to substantiate her need for leave as a reasonable accommodation. The record clearly showed that Complainant had provided sufficient information to substantiate her disabilities and need for leave as an accommodation for disability-related flare ups. The documentation indicated that Complainant’s conditions were chronic and likely permanent, and the record showed that the Agency was fully apprised of the permanent nature of Complainant’s disability and restrictions.[41]

Reasonable Accommodation

ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment,[42] unless to do so would cause undue hardship.[43] A reasonable accommodation is any modification or adjustment in the work environment or in the way things are customarily done that enables qualified individuals with disability to apply for a job, perform a job, or gain equal access to the benefits and privileges of a job.[44] Generally, the individual with disability must inform the employer that an accommodation is needed. Possible accommodations include, but are not limited to, altered work schedules to allow for frequent breaks or to accommodate medical appointments, ergonomic office furniture, accrued paid and unpaid leave to obtain or recuperate from medical, telework, and reassignment.[45] An employer does not have to remove any essential functions of an individual’s job, allow an employee to do less work for the same amount of pay, or accept lower quality work as an accommodation.[46]

A modification or adjustment is ”reasonable” if it seems reasonable on its face, that is if it appears ”feasible” or ”plausible.”[47] An accommodation must also be effective in meeting the needs of the individual.[48] An employer does not have to provide personal use items needed in daily activities both on and off the job, such as eyeglasses or hearing aids, and does not have to eliminate the essential functions of an individual’s job.[49] In considering a reasonable accommodation request, agencies should engage in an individualized assessment of the employee’s circumstances.[50] For example, in a request for continued Leave Without Pay (LWOP) as an accommodation , the failure to engage in an individualized assessment can result in the agency being unable to meet its burden of proving that granting the employee additional LWOP would have created an undue hardship on its operations.[51]

The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.[52]

Any accommodation provided by an agency must be effective in meeting the needs of the individual.[53] Moreover, an agency’s response to a request for a reasonable accommodation must be expeditious.[54] In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay; (2) the length of the delay; (3) how much the individual with a disability and the agency each contributed to the delay; (4) what the agency was doing during the delay; and (5) whether the required accommodation was simple or complex to provide.[55]

The ADAAA did not change the definition of reasonable accommodation. However, the Act does clarify that only individuals who meet the first (actual disability) and second (record of a disability) parts of the definition are entitled to accommodations; individuals who only meet the third part (regarded as) are not entitled to accommodations. Even though the definition did not change, it is clear that with a broader definition of disability, more focus will be placed on providing reasonable accommodations. In addition, while the ADA protects employees and applicants from discrimination based on their relationship or association with an individual with a disability, the ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with the disabled individual.[56]

Relevant Federal Sector Cases

The Commission found that the Agency failed to provide Complainant with an effective accommodation in Kristopher M. v. Department of the Treasury.[57] Complainant, who experienced paralysis in his hand, was provided with a special keyboard as an accommodation for his disability from the time he was hired in 2005 through 2012. The keyboard allowed Complainant to conduct one-handed data entry. In 2012, Complainant requested that the Agency provide Dragon Voice recognition software on his computer to accommodate his disability due to an increased workload. Although the Agency granted Complainant’s request for the software, an AJ determined that the Agency failed to provide Complainant with an effective accommodation when his computer, over a two-year period, failed to work properly with the Dragon software. As a result of this ineffective accommodation, Complainant sustained a work-related injury to his right hand when he returned to using the special keyboard. On appeal, the Commission found that the efforts the Agency made to resolve Complainant’s computer issues with the Dragon software were either unduly delayed or only partially implemented, and as a result, the Dragon software was not an effective accommodation. The Commission noted that the Department of Defense’s Computer/Electronic Accommodations Program (“CAP”) is available as a resource for agencies to use to help identify potential computer-related solutions to assist federal employees with disabilities.

The Complainant in Ria T. v. U.S. Postal Service,[58] filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of sex and disability (pregnancy) when the Agency did not accommodate her medical restrictions for approximately two months, and she was not permitted to work. The Agency asserted that Complainant had not presented evidence that there was work available within her restrictions during the period in question. On appeal, the Commission noted the Agency’s position that pregnancy does not render one an individual with a disability under the Rehabilitation Act. However, the Commission clarified that a pregnant employee may be entitled to reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability, or for limitations resulting from the interaction of the pregnancy with an underlying impairment. The Commission explained that Complainant’s request could be construed as a request for reasonable accommodation because she identified her exact medical restrictions and requested an accommodation of a temporary light-duty assignment. The Commission noted that conditions, if severe, constitute disabilities if they are expected to last for more than several months. Here, Complainant’s condition began in August 2017, and was expected to last until October 2018. Accordingly, the Commission found that Complainant was a qualified, disabled individual who requested a reasonable accommodation. The Commission found that the requested accommodation would have allowed Complainant to work within her restrictions, and Complainant stated that had she been granted the accommodation two months earlier, she would have been able to work. The Commission concluded that Complainant did not contribute to the two-month delay, and that the Agency simply failed to act on her request until late October 2017. Therefore, the Agency violated the Rehabilitation Act when it delayed responding to Complainant’s request for a reasonable accommodation.

In Ruben T. v. Department of Justice,[59] the Commission found, among other things, that the Agency discriminated against Complainant based on his disability when it failed to provide him with a reasonable accommodation in a timely manner. In September 2012, Complainant initiated his request for a reasonable accommodation due to his dyslexia, and his performance improved when he received accommodations in July 2013. In October 2013, however, the Agency informed Complainant that his software was not approved and removed the software from his workstation. Complainant requested alternative software the following month. In May 2014, Complainant requested a status update from the Agency’s Reasonable Accommodation Program Manager, who responded that he “lost track” of Complainant’s request. Complainant ultimately received accommodations in February 2015, and his performance improved such that he was promoted five months later. The Commission found that Complainant was a qualified individual with a disability, and that the Agency unnecessarily delayed accommodating him. While the Agency argued that there were “security reasons,” it did not provide any details describing the concerns. Further, the Commission found that Complainant actively worked to try to get accommodations, but that the Agency lost track” of his request for approximately five months; failed to adequately respond to Complainant’s request for a list of Agency-approved software; and blamed him for a delay when he requested a change in the brand of software, even though the Reasonable Accommodation Program Manager was aware of the change and did not act to get that software vetted.

In Rochelle F. v. U.S. Postal Service,[60] Complainant had a permanent back condition, and the Agency initially provided her with an ergonomic chair. Complainant later reported that the chair was broken, but the Agency failed to provide her with a replacement that met her needs. The Commission stated that the Agency should have worked with Complainant to conduct an individualized ergonomic assessment that would have determined Complainant’s specific needs. Instead, the Agency first completely denied Complainant’s request for an ergonomically correct chair, and then provided her with a chair that not only did not fit her physical and medical needs, but also caused her to experience additional physical impairments. The Commission concluded that the Agency’s provision of chairs without conducting an ergonomic assessment of Complainant’s individual needs was wholly inadequate and deprived her of an accommodation that was effective. The Agency did not show that providing Complainant with a properly fitting ergonomic chair would have imposed an undue hardship on the Agency.

Leave as an Accommodation

Employees with disabilities must be provided access to leave on the same basis as all other similarly situated employees consistent with the employer’s existing leave policy.[61] Employers must also treat requests for leave as an accommodation the same as it treats requests for leave for reasons unrelated to a disability.[62] As with other accommodations, providing leave will afford employees with disabilities equal employment opportunity.[63] Employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave.[64]

The purpose of the ADA’s reasonable accommodation obligation, however, is to require employers to change the way things are normally done in order to enable employees with disabilities to work.[65] Therefore, in addition to treating requests for leave as an accommodation in the same manner it treats requests for leave unrelated to a disability, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation so long as it does not create an undue hardship for the employer.[66] This applies even when the employer does not offer leave as an employee benefit; the employee is not eligible for leave under the employer’s policy; or the employee has exhausted the leave under the employer’s benefit program.[67] Absent proof of undue hardship, reasonable accommodation includes “making modifications to existing leave policies and providing leave when needed for a disability even where an employer does not offer leave to other employees.”[68] An employer is not required, however, to provide paid leave beyond what it provides as part of its leave policy.[69]

For example, while an employer would not have to provide paid leave as an accommodation to an employee who has worked only three months when its paid leave policy covers employees who have been employed for at least six months, the employer must provide the employee with unpaid leave as an accommodation unless it could show that providing the unpaid leave would cause an undue hardship.[70] This would be true even if the employer’s leave policy prohibited the use of leave during the first six months of employment, or if the employee did not work enough hours to qualify for the employer’s leave benefit.[71] Although employers are allowed to have leave policies that establish the maximum amount of leave it will provide or permit, employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability unless the employer can show that doing so would cause an undue hardship.[72]

If the request for leave can be addressed by the employer’s leave program, the Family Medical Leave Act (FMLA) or similar state or local law, or the worker’s compensation program, the employer may provide leave under these programs.[73] If the leave cannot be granted under any of these programs, the employer should promptly engage in the interactive process with the employee. This allows the employer to obtain relevant information to determine the feasibility of providing leave as a reasonable accommodation without causing undue hardship, as well as understand the amount and type of leave needed.[74] The information required by the employer will vary from one employee to another, and may include information from the employee’s health provider (with the employee’s permission) to confirm or elaborate on information the employee has provided.[75] The focus of the interactive process will primarily focus on the reasons the employee needs the leave, whether the leave will be a block of time or intermittent, and when the need for leave will end.[76] The interactive process may continue even after the initial request has been granted, particularly if the request did not include a relatively specific return date, or the employee requires additional leave beyond that originally granted.[77]

Employees on leave for a disability may request reasonable accommodation in order to return to work. In this case, the interactive process would continue. The employer may ask why the accommodation is needed, and for how long, and may explore possible accommodations with the employee that will allow him/her to perform the essential functions of his/her job consistent with any restrictions his/her doctor recommends.[78] The employer may need to consider, among other things, the specific accommodation the employee requires, the reason for the accommodation, the length of time the accommodation will be needed, possible alternative accommodations, and whether any of the accommodations will cause an undue hardship.[79] If an employee requests to return to work, an employer will violate the ADA if it requires an employee with a disability to have no medical restrictions or be “100%” healed or recovered if the employee can perform his/her job with or without reasonable accommodation unless the employer can establish that providing the accommodation would cause an undue hardship.[80]

In Irina T. v. Department of Veterans Affairs,[81] the Commission found that while Complainant requested a reasonable accommodation in the form of Leave Without Pay (LWOP) for disability-related absences, there was no indication that management initiated or engaged in any sort of interactive process with Complainant to explore means to accommodate her well-known disability. Complainant alleged, among other things, that she was discriminated against based on her disabilities (diabetes, gastroparesis disease) when the Agency ordered her to return to work or face discipline, and later reprimanded her for being Absent Without Leave (AWOL). Complainant’s absences, some of which required hospitalization, were due largely to symptoms of her diabetes, and Complainant, or her husband, consistently and timely notified Complainant’s supervisor of the absences, including the reasons for them. After Complainant’s leave ran out, the Agency charged her with AWOL and ordered her to return to work. Complainant did so, but her absences continued, and she was reprimanded for continued AWOL. The Agency did not dispute the validity of Complainant’s illness but, applied its blanket attendance policy.

The Commission found that the Agency was unable to meet its burden of proving that granting Complainant additional excused absences would have created an undue hardship on its operations. The Commission has stated that employers may need to modify general leave policies when providing accommodation, and emphasized that engagement in the interactive process with the employee is specifically designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship. Complainant noted on appeal that she now works three hours per day, and her attendance has been good because she is experiencing fewer symptoms from her disability due to the changed schedule. The Commission found that had the Agency engaged in the interactive process with Complainant, it might have discovered this other viable accommodation.

Telework as an Accommodation

Telework is a tool that employers have at their disposal when an employee requests a reasonable accommodation. Employers that are successful at navigating the reasonable accommodation process, fully engage in the interactive process between the employer and employee and understand that modifications to the employment situation may be necessary.

As stated in EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, “[t]here are three categories of "reasonable accommodations":

"(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities."[82]

The Commission has stated that allowing an employee with a disability to work at home may be a form of reasonable accommodation.[83] Specifically, working from home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.[84] While the ADA does not require an employer to offer a telework program to all employees, the employer must allow employees with disabilities an equal opportunity to participate if it offers a telework program.[85] In addition, an employer may be required to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.[86] Permitting an employee to work at home may be a reasonable accommodation even if the employer has no telework program.[87] However, an employer is not obligated to adopt an employee’s preferred or requested accommodation, and may instead offer alternative accommodations as long as they are effective.[88]

The determination of whether an employee needs to work at home as a reasonable accommodation should be made through a flexible interactive process. Once an employee requests a reasonable accommodation, that indicates that she or he has a medical condition that requires some change in the way a job is performed, the employer and the employee will engage in discussions to determine what types of accommodation are available to ensure that the employee can maintain full-time employment.[89] These discussions may reveal that telework is the only effective option, in a particular instance.[90]

An examination into all of the essential functions and duties of the position must take place in order to determine whether or not an employee’s job, or parts of the job, can be performed at home.[91] While an employer does not have to eliminate an essential duty, a determination may be made that some minor or marginal duties that should be done on-site can be reassigned and the accommodated employee can assume other, minor duties that can be performed at home.[92]

The feasibility of telework as a reasonable accommodation turns on several considerations, such as the equipment that can be used at home, the need for face-to-face contact with co-workers and stakeholders, access to resources at the worksite, and the ability to sufficiently provide supervision.[93] The employer should determine if there are alternative means to meet these requirements, such as virtual private networks, video or tele-conference, and email. A determination also may be made that certain duties can only be performed at the worksite.[94]

How frequent an employee teleworks is dependent on the constraints of his or her disability. In some instances, working at home may last for a limited time, such as several days per week, a few weeks at a time or for several months.[95] In other circumstances the reasonable accommodation of telework may be provided on an as-needed basis, or it may be determined that working from home can be done on a part-time basis.[96] The employer is not required to grant the preferred or requested accommodation of working at home, but may provide any effective accommodation, including: modifications to the equipment at the worksite, modifications to the schedule, restructuring jobs, providing qualified sign language interpreters or readers, or some combination of accommodations.[97]

Relevant Federal Sector Cases

In Hae T. v. Department of the Interior,[98] the Commission found that the Agency failed to provide Complainant with situational telework as a reasonable accommodation. Complainant worked as a Park Ranger providing interpretative programming for, and assisting visitors at, various visitor centers. Following her diagnosis of Sjogren’s Syndrome (an autoimmune disorder), the Agency provided Complainant with various requested accommodations. However, the Agency denied Complainant’s request for situational telework. The Commission concurred with the Agency’s finding that Complainant was a qualified individual with a disability, as Complainant’s supervisors stated that Complainant was able to perform the essential functions of her position. Further, Complainant indicated that she performed only one and one-half to five hours of “front line face-to-face visitor interactions” per week, and, as such, the Agency found that public contact was not an essential function of Complainant’s position. The Commission concluded that the Agency failed to reasonably accommodate Complainant when it denied her request for telework. No Agency official disputed Complainant’s contention that she performed the bulk of her duties in an office setting. The Commission found that Complainant’s request for six to eight hours of situational telework was minimal and well within the number of hours of her non-public work. The Agency failed to demonstrate that granting Complainant’s request would have been an undue hardship. The Commission was unpersuaded that Complainant’s need for six to eight hours of situational telework per month would regularly fall on days when she would be scheduled to work at the visitor centers or engaged in other interpretative programs. Though the Commission found that the Agency had subjected Complainant to discrimination, the Commission concluded that the Agency did not fail to act in good faith, as the record clearly showed that management granted all of Complainant’s other requests.

In Anne W. v Social Security Administration,[99] the Commission found that the Agency failed to provide Complainant with a reasonable accommodation when it neglected to initiate the interactive process. Complainant filed a formal EEO complaint alleging, among other things, discrimination based on disability (chronic migraines and fibromyalgia) when the Agency denied her request for an additional telework day per week as an accommodation. It was undisputed that Complainant was qualified and could perform the essential functions of her job while teleworking, and Complainant provided her supervisor with medical documentation, and a narrative explaining how an additional day of telework would accommodate her conditions. Her supervisor determined Complainant's request was not "valid" because, among other things, Complainant's health conditions were "manageable" and episodic in nature. The Commission noted that the fact that Complainant's conditions were episodic, and at times manageable, did not exempt the Agency from its responsibility to provide reasonable accommodation. By merely denying Complainant's request for accommodation, her supervisor failed to initiate the interactive process to arrange a reasonable accommodation for Complainant's known physical disabilities, even if not the one she specifically requested.

In Elsa v. National Aeronautics and Space Administration,[100] the Commission affirmed the AJ’s conclusion that the Agency improperly denied the Complainant telework as a reasonable accommodation. Complainant filed an EEO complaint alleging, among other things, that she was discriminated against based on disability when her Supervisor continuously refused to enter into the interactive process to discuss her disability limitations, multiple requests for reasonable accommodation, and failed to permit her to work a maxi-flex schedule. Following a hearing on the claim, an AJ found Complainant was a qualified individual with a disability, and that the Agency discriminated against her when it unreasonably delayed providing her reasonable accommodation. Further, the AJ found the Agency failed to provide Complainant telework as a form of reasonable accommodation. On appeal, the Commission affirmed the AJ’s findings. The Agency did not dispute that Complainant was a qualified individual with a disability. The Commission found that Complainant demonstrated that she needed the reasonable accommodation of situational telework, because her medical condition sometimes caused her to experience frequent episodes of diarrhea, episodic bowel incontinence, and abdominal pain. The Agency unreasonably delayed granting Complainant accommodations for a period of 75 days and failed to justify the delay. The Commission noted that Complainant had to submit multiple requests for accommodation, and, in one instance, her supervisor required Complainant to resubmit her request because the supervisor objected to Complainant’s use of capitalized letters and a particular font. The Commission rejected the Agency’s assertion that Complainant was allowed to telework during the period in question, noting that Complainant was only granted telework for her disability one time despite requesting it as often as twice a week. While the Agency indicated that Complainant could have used leave, the Commission stated that forcing an employee to use leave when another accommodation would permit the employee to continue to work was not an effective accommodation. The Agency failed to prove it would have been an undue hardship to allow Complainant to telework as requested.

In Tricia B. v. Department of Health and Human Services,[101] the Commission concluded that full-time telework may be required as a reasonable accommodation. Complainant was diagnosed with recurrent facial angioedema and asthma which causes itchy and runny eyes and difficulty in breathing when she walks into any carpeted room at her worksite, as well as when people come into her workspace from any carpeted area. Complainant asserted that her supervisor (S2) denied her request for full-time telework, and granted only one day of telework per week, which had not been implemented. The Commission found that the Agency discriminated against Complainant when it failed to provide Complainant a reasonable accommodation. The Agency acknowledged that Complainant was a qualified individual with a disability. The record showed that Complainant requested full-time telework in or about July 2017. The Agency engaged in the interactive process and requested medical documentation in support of Complainant’s request. S2 notified Complainant in August 2017 that the Agency’s Medical Director determined that Complainant should not work in any carpeted workspace. However, S2 seemingly ignored Complainant’s request for telework until October 16, 2017, when S2 advised Complainant that the Agency would agree to one day of telework per week. Nevertheless, the record showed that the one day of telework was not implemented until February 2018. The Commission concluded that the accommodations provided by the Agency, that is, moving Complainant to a workspace without carpet and permitting Complainant to attend meetings that take place in carpeted areas via teleconference from her office, were not effective. Despite the accommodations provided by the Agency, Complainant continued to experience allergic reactions approximately three times per week. Accordingly, the Commission found full-time telework to be the only appropriate accommodation in this case.

In Patricia W. v. Department of Homeland Security,[102] the Commission found that the Agency failed to provide Complainant with reasonable accommodation. Due to a car accident, Complainant was diagnosed with long-term back and neck injuries. As a result, Complainant’s physician recommended that she telework from home full-time with proper accommodations because the “mobility, distance, time of actions and travel required” for Complainant to work in the office all exceed her current medical limitations. In a previous decision, the Commission found that the Agency improperly revoked Complainant’s telework accommodation and inexplicably delayed restoring this accommodation for four months, failed to respond to Complainant’s request for assistive technology, software and training, and penalized Complainant for its own failure to accommodate her. Complainant filed a second formal complaint alleging, among other things, that the Agency continued to deny her reasonable accommodation for her disabilities. The Commission again concluded, among other things, that the Agency failed in its duty to reasonably accommodate Complainant’s disabilities by either not providing Complainant with adequate equipment, software and training, or unreasonably delaying the provision of necessary technology, to support her accommodation of full-time telework which, in turn, negatively impacted Complainant’s work performance.

Conclusion

The ADA and Rehabilitation Act require an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. Employers should respond expeditiously to a request for reasonable accommodation; engage in a flexible, interactive discussion with the employee to determine the appropriate accommodation; and must assess on a case-by-case basis whether a reasonable accommodation would cause undue hardship. Employers and employees should know their rights and responsibilities under the ADA and the Rehabilitation Act to ensure that qualified individuals with disabilities enjoy equal employment opportunities.

For updates and information related to COVID-19 and the ADA, the Rehabilitation Act and other EEO laws visit https://www.eeoc.gov/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[1] 29 U.S.C. § 791 et seq.; the Rehabilitation Act was amended to ensure uniformity and consistency of interpretation with the Americans with Disabilities Act. 29 U.S.C. § 791(g); see 29 C.F.R. § 1614.203(b); the Americans with Disabilities Act Amendments Act (ADAAA) expanded the definition of disability under the ADA and the Rehabilitation Act. 42 U.S.C.A. § 12101 note; 29 C.F.R. § 1630.2(g).

[2] 29 U.S.C. § 791(g); see 29 C.F.R. § 1614.203(b); the Americans with Disabilities Act Amendments Act (ADAAA) expanded the definition of disability under the ADA and the Rehabilitation Act. 42 U.S.C.A. § 12101 note; 29 C.F.R. § 1630.2(g).

[3] See www.eeoc.gov/disability-discrimination

[4] See 29 C.F.R. § 1614.203(a).

[5] 29 C.F.R. § 1630.2(o)(p)

[6] See Appendix to 29 C.F.R. Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630”), at Section 1630.2(o): Reasonable Accommodation.

[7] 29 C.F.R. § 1630.1(c)(4).

[8] Id.

[9] Id.

[10]29 C.F.R. § 1630

[11] 29 C.F.R. § 1630.2(i)(1)(i)(ii).

[12] 29 C.F.R. § 1630.2(j)(ii).

[13] 29 C.F.R. § 1630.2(j)(iv).

[14] 29 C.F.R. § 1630.2(j)(vi); however, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered.

[15] 29 C.F.R. § 1630.2(j)(iii).

[16] 29 C.F.R. § 1630.2(m).

[17] Gwendolyn G. v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013).

[18] 29 C.F.R. § 1630.2(p). The Commission has noted that the Age Discrimination in Employment Act (ADEA) prohibits covered employers from involuntarily excluding an individual from the workplace based on his/her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness like COVID-19. While the ADEA does not include a right to reasonable accommodation for older workers due to age, employers are free to provide flexibility to workers age 65 and older, and this would not be prohibited even if it resulted in younger workers being treated less favorably in comparison. For COVID-specific information please see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated October 25, 2021).

[19] Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

[20] An employee who applies for a new job with the same employer should be treat as an applicant with respect to rules concerning disability-related inquiries and medical examinations but not for employee benefits (e.g., retirement, health and life insurance, leave accrual) or other purposes. The employer, therefore, is prohibited from asking disability-related questions or requiring a medical examination before making the individual a conditional offer of the new position. Id.

[21] Id.

[22] Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, (July 27, 2000) § B of General Principles.

[23] Id.

[24] Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, (July 27, 2000) § B of General Principles at Question 1.

[29] Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, (July 27, 2000) § B of General Principles at Question 2.

[30] Id.

[31] Id.

[32] Id.

[33] Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his/her ability to perform the essential functions of his/her job, or will result in a “direct threat.” Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA at § A, Question 5.

[34] Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA at § A, Question 5.

[35] Id.

[36] "Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. §1630.2(r).

[37] Id.; see Nathan v. Dep’t of Justice, EEOC Appeal No. 0720070014 (July 19, 2013).

[38] Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA at n.39.

[39] EEOC Appeal No. 0120180519 (Mar. 5, 2020).

[40] EEOC Appeal No. 0120170175 (Mar. 26, 2019).

[41] Also see Linn A. v. Department of the Army, EEOC Appeal No. 0120171148 (Feb. 14, 2020) (the Commission determined that the physical examination was job-related and consistent with business necessity because it was necessary for positions with LEO retirement coverage; however, that the Agency failed to establish by a preponderance of the evidence that the psychological fitness-for-duty examination with the psychologist was job-related and consistent with business necessity); and Homer S. v. U.S. Postal Service, EEOC Appeal No. 0120181759 (Aug. 16, 2019) (the Commission concluded that the Agency properly required Complainant to report for a medical examination and made other medical inquiries for reasons that were job related and consistent with business necessity).

[42] Regardless of whether they work part-time or full-time or are considered “probationary.”

[43] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada,

[44] 29 C.F.R. § 1630.2(o)(1).

[45] Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

[46] Id.

[51] See Irina T. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180568 (Apr. 3, 2019).

[52] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, (Oct. 17, 2002) (Requesting Reasonable Accommodation).

[53] Id. at Question 9.