Disability and Reasonable Accommodation
If you cannot prove that you are a person with disability in normal daily life, you don’t have the right to request reasonable accommodation at work—the accommodation that would enable you to perform the essential functions of your job.
➤ The Definition of Disability under Americans With Disability Act Amendments Act (ADAAA), which is equivalent to Rehabilitation Act (which is applicable only to federal employees):
Having an impairment (mental or physical) which substantially interferes with one or more major life activities such as walking, bending, sitting, pulling, pushing, holding (a tool/bag, etc.), stooping, climbing ladder or stairs, running, jogging, breathing, shopping groceries, take care of yourself, dressing, combing, bathing, sleeping, eating, having sex, procreating, learning, reading, concentrating, driving (?), cleaning your house, cooking, gardening, lifting a child, eating at a restaurant, going to theater/church/bar, socializing, remembering recent activities, listening, seeing, talking, communicating, eating, swallowing, growing, digesting (food), bowel movement, bladder functions, sensing (by touch or by feeling via brain activity, etc.), carrying out routine chores at home, and working (at the same or comparable job within commuting distance with or without accommodation--this gets legally complicated; because usually you are supposed to be able to perform the essential functions of the job if, as explained below, you are claiming disability discrimination--so avoid using this example).
➤ Episodic Conditions:
Episodic conditions can be deemed disabling if, when active, it interferes with one or more major life activities.
➤ Perceived ("regarded as") Disability:
If an employer failed to act or acted in adverse way in disparate manner based on non transitory and minor impairment, the applicant or employee is "regarded as" or perceived as disabled--regardless of whether the employer knew such impairment interfered with one or more major life activities. To claim perceived disability, one must have non transitory and minor impairment in the least--regardless of whether such impairment substantially interferes with one or more major life activities.
An individual claiming discrimination based on perceived disability cannot claim to be accommodated, unless he or she actually has a disability that meets the above definition and requested accommodation based on disability.
Interactive Process and Undue Hardship
29 C.F.R. § 1630.2(o)(3) and (4) provide that the employer should initiate “interactive process” to determine limitations related to disability and to identify reasonable accommodations that could overcome those limitations, absent undue hardship (from Cornell Law School):
(3) To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
(4) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong (paragraph (g)(1)(i) of this section), or “record of” prong (paragraph (g)(1)(ii) of this section), but is not required to provide a reasonable accommodation to an individual who meets the definition of disabilitysolely under the “regarded as” prong (paragraph (g)(1)(iii) of this section).
➤ RAC is a trap: Reasonable Accommodation Coordinator, whether local or national, is a trap designed to evade, delay, and undermine your reasonable accommodation requests you made based on your disability. Notice in one of the actual cases (from a ROI) how RAC focuses on medical records and trying to build a pretext for denying the request by stating that due to the alleged defect in the record, the accommodation cannot be granted. Such a reason cannot stand the crutiny under the Rehabilitation Act of 1973, because the only denial that could be defended is the argument establishing "undue hardship." Here there is no such argument but the pretext of the purported defect in the medical records. If accommodation is reasonable and effective, it must be granted absent "undue hardship." Period, full stop.
➤ Denied accommodation claims and Worker's Comp claims:
Light duty under Workers' comp. (OWCP) provision in general should not be confused with reasonable accommodation under ADA/Rehabilitation Act. Light duty under OWCP usually involves substantial alternation of the job in such a way that you are no longer performing the essential functions of the job you were hired for or have been performing for more than 6 months or a year.
But this could get legally complicated. For example, if you were performing a light duty for more than a year, it becomes your main duty. And, say, due to changes in your medical condition, you needed an accommodation to continue to perform the light duty. In that case, you are entitled to a reasonable accommodation while on light duty, as long as you meet the definition of disability under ADAAA/Rehabilitation Act, as specified above.
Otherwise, in general, if you are disabled under ADA/Rehabilitation Act, you are entitled to a reasonable accommodation, if you can perform the essential functions of the job you were hired to perform or have been performing more than 6 months or a year.
If you cannot perform the essential functions of the job, you are not entitled to a reasonable accommodation, although you may be entitle to a suitable light duty (if your OWCP claim is approved and if such light duty work is available).
More on how not to fall into trap when requesting a reasonable accommodation: a LinkedIn article by Chungsoo J. Lee.
➤ Reasonable Accommodation:
Your accommodation requests must be reasonable. That means, for you they must be suitable to be able to perform the essential functions of the job; and for employer they must not cause "undue hardship."
Undue hardship must be defined on case by case basis--depending on the size of the company, what was requested as accommodation, etc. A claim of undue hardship without showing or plausible explanation should be challenged as a pretext for denial in violation of ADAAA/Rehabilitation Act.
Accommodation must be requested clearly and as specifically as possible. A vague request, such as lateral transfer, can easily be denied by the employer, saying: there are no such positions. Present a specific vacant position, if a lateral transfer is what you are requesting as a reasonable accommodation.
Once accommodation is requested, both the employer and the employee have obligation to engage in an "interactive process." This means, it takes two to tango. You and the supervisor/HR must actively work out a solution to come up with a reasonable accommodation. Unilateral demand on the part of the employee or unilateral denial on the part of the employer cannot be deemed to be engaging in an interactive process. Failure to engage in an interactive process is just as serious a violation as a blatant denial of accommodation.
➤ Reassignment as an accommodation of the last resort:
Any reassignment that alters the essential functions of her job can be offered as an accommodation of the last resort, if and only if an employee cannot perform the essential functions of her current job.
EEOC’s Enforcement Guidance on RA (EEOC-CVG-2003-1, paragraph 24) provides that an accommodation of the last resort "must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.” This guideline was established based on 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); see Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104, 4 AD Cas. (BNA) 1297, 1305 (S.D. Ga. 1995).
➤ Indefinite absence of leave, requested as accommodation, is not reasonable:
Various Circuit Courts have ruled that indefinite absence of leave is undue hardship and therefore is not “reasonable” as accommodation. EEOC has followed these rulings and adopted them in its guideline.
See Delaval v. PTech Drilling Tubulars, LLC, 824 F.3d 476, 481-82 (5th Cir. 2016) (“Time off, whether paid or unpaid, can be a reasonable accommodation, but an employer is not required to provide a disabled employee with indefinite leave.”); Roberts v. Bd. of Cnty. Comm’rs, 691 F.3d 1211, 1217-19 (10th Cir. 2012) (providing that “at the time of her termination, the county did not have a reasonable estimate of when [the employee] would be able to resume all essential functions of her employment. As such, the only potential accommodation that would allow [the employee] to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law”); Peyton v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 903 (8th Cir. 2009) (noting that a request for an indefinite leave is not a reasonable accommodation under the ADA); Fogleman v. Greater Hazleton Health Alliance, 122 Fed. App’x 581, 586 (3d Cir. 2004) (concluding that there was “no evidence that permits any conclusion other than that the requested leave was for an indefinite and open-ended period of time,” which “does not constitute a reasonable accommodation.”); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997) (“Plaintiff’s request that his employer accommodate any disability Plaintiff had by providing him with two more months leave when he could not show he would likely be then able to labor is not ‘reasonable’ within the meaning of the ADA. . . .”); Myers v. Hose, 50 F.3d 278, 280-81 (4th Cir. 1995) (holding that a requirement that an employer grant an employee an indefinite medical leave would “contravene the meaning of the phrase ‘reasonable accommodation’” under the ADA).
EEOC guidance on indefinite leave, acknowledged and followed by most circuits, supports the proposition that requests for indefinite medical leave are per se unreasonable. See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, THE AMERICANS WITH DISABILITIES ACT: APPLYING PERFORMANCE AND CONDUCT STANDARDS TO EMPLOYEES WITH DISABILITIES, (Oct. 14, 2008), https://www.eeoc.gov/facts/performance-conduct.html [hereinafter PERFORMANCE & CONDUCT STANDARDS]; see also Delaval v. Ptech Drilling Tubulars, LLC, 824 F.3d 476, 481-82 (5th Cir. 2016); Kalskett v. Larson Mfg. Co. of Iowa, Inc., 146 F. Supp. 2d 961, 981 (N.D. Iowa 2001); Boykin v. ATC/VANCOM of Colo., L.P., 247 F.3d 1061 (10th Cir. 2001). The EEOC defines indefinite leave as a situation in which an employee “cannot say whether or when she will be able to return to work at all. . . .” U.S. EQUAL EMP’T OPPORTUNITY COMM’N, EMPLOYER-PROVIDED LEAVE AND THE AMERICANS WITH DISABILITIES ACT, 10 (May 9, 2016), available at https://www.eeoc.gov/eeoc/publications/upload/ada-leave.pdf [hereinafter EMPLOYER-PROVIDED LEAVE]. While the EEOC advises that such a request would constitute an undue hardship, the EEOC acknowledges that most courts consider the request as per se unreasonable. See Performance & Conduct Standards supra note 2, at footnote 76.
➤ Disability Discrimination and Disability Retirement:
As long as you can perform the essential functions of the job (with or without accommodation), you can claim disability discrimination, if you meet the definition of disability. But, often times, your disability is made worse by employer's discriminatory or retaliatory actions (which are often persistent and on-going, so as to create an intolerable working condition), as result of which you could no longer perform the essential functions of the job or of any job within the same or similar classification and pay grade within commuting distance, in which case you may in turn qualify for Social Security Disability benefits and Disability Retirement. If you qualify for disability retirement, you may no longer be able to claim (a new) disability discrimination, as you may no longer be able to perform the essential functions of the job. This does not mean that your past disability discrimination claims would become automatically moot or frivolous. It means that you cannot make similar claims any more, as you can no longer perform the essential functions of the job due to disabling disability. Hence, the disability retirement. There is an exception to this, however. You may still be able to claim a constructive discharge.
➤ Constructive Discharge claim:
A constructive discharge claim must claim "intolerable working condition" to which the complainant was subjected to in such as way that any reasonable person under similar circumstances would have no choice but to quit, retire, take demotion, etc.
If as result of discrimination and/or retaliation your working condition became so "intolerable" that any reasonable person under similar circumstances would have no choice but to quit, retire, take demotion, etc.; and, as result, your disability became worse; you may be able to claim a constructive discharge when your retirement, resignation, or demotion becomes effective. In that case, your logic/legal argument behind your claim is: Had you not been discriminated/retaliated against, your working condition would not have been made intolerable, and your health would not have worsened as result; and had your health not been made worse, you could have been able to perform the essential functions of your job (with or without accommodation)--that is, you would not have had to quite, retire, take demotion, etc.
This scenario is the logic/legal argument behind your constructive discharge claim involving disability retirement. Of course, you don't present the logic/argument as facts. You present the facts first that would support such a logic/legal argument. You may summarize the material facts with such a logic/argument, however.
➤ Disability Retirement and Workers' Comp:
If your disability was made worse (to the point of inability to work) as result of discrimination/retaliation in the work place, you may qualify for Workers' Comp claim in addition to disability retirement (as the worsening of your condition was job-related). The two benefits systems (OWCP and Retirement) may complement and supplement each other in terms of compensation. But, also, the two may mutually exclude each other in terms of compensation. That is, you may have to reimburse if you were overpaid as result of receiving benefits from both systems. For this reasons, retirement application, SF 3107 Section F (which must be filled out for both regular retirement and disability retirement), asks about your OWCP claim.