In our last post, we discussed delays in responding to harassment allegations can result in findings of discrimination. In this post, we’ll look at delays in responding to reasonable accommodation requests and how EEOC has ruled.
In Complainant v. Department of Veterans Affairs, 0120123071, (EEOC OFO 05/28/15), EEOC found the agency’s six-week delay in starting the interactive process after an employee’s request for a reasonable accommodation is unreasonable. In this case, management did not dispute that the complainant was a qualified individual with a disability. She had previously been allowed to use a space heater at work to provide warmth to her legs and feet as a reasonable accommodation. She was later asked to remove the heater due to an agency policy. She again requested the use of a space heater in January. The agency did not provide her paperwork to request updated medical information until March. EEOC said the agency took no meaningful action regarding her requests and found insufficient justification for the agency’s failure to respond. It is not clear what the agency did from January to March other than the human resources office searching for medical documentation to support the complainant’s prior approved reasonable accommodation.
EEOC noted that the agency’s request for updated medical information was reasonable. EEOC specified that a prescription from the complainant’s doctor noting her condition and that she needed a space heater was insufficient to support her request. However, a letter from the doctor that the complainant later submitted was sufficient.
In a second recent VA case, Complainant v. Department of Veterans Affairs, 0120132745,(EEOC 07/15/15) EEOC found an agency’s delay in implementing an employee’s reasonable accommodation request for updated software is not discriminatory when the delay was caused by procurement issues and the employee was able to use an older version of the software. In this case, a project manager alleged that the agency subjected her to discrimination based on disability (carpal tunnel syndrome) when it delayed implementation of her approved reasonable accommodation. The manager had previously received several accommodations, including voice-activated software. She requested an updated version of the software.
EEOC found that VA did not subject the manager to discrimination or fail to reasonably accommodate her noting management acted in good faith in granting the request for the new version of the software although the procurement process was slow. EEOC further found that the agency was already providing the manager with an effective reasonable accommodation. It found insufficient evidence that the delay of obtaining the updated software would address any limitation imposed by her disabilities. The complainant did not show a nexus between her disability and her desired accommodation.
Let’s compare and contrast these two cases. First, both deal with the timeliness of responses to reasonable accommodation requests. However, in the first case, the agency lost because they failed to start the interactive process in a timely manner. While the agency was within its rights to request updated medical, EEOC found the subsequent delay was unwarranted. Time is of the essence with respect to responding to requests, and the failure to act can result in a finding.
The second case also deals with a delay, but in that case, EEOC did not make a finding because, although there was a justifiable delay due to procurement, the complainant already had a reasonable accommodation in place. There may have been another outcome if the complainant did not already have an older version of the software.
Both EEO practitioners and managers know how complex reasonable accommodation cases can be, but there are 6 things that can be done to minimize vulnerability:
- Be familiar with your agency’s reasonable accommodation policy so when you receive a request, you know the process.
- Ask your disability program manager or reasonable accommodation official to provide training to you or your managers to understand how to handle requests.
- Upon receipt of a request, immediately engage the individual in the interactive process. Keep them informed of your efforts. Explore all options, especially if the accommodation will take awhile to obtain.
- Don’t ask for medical just to delay the process. Obtaining updating medical documentation may be appropriate, but it should not unnecessarily delay the process.
- Don’t make the process adversarial even if you believe the requestor does not qualify for a reasonable accommodation based on disability. The purpose of reasonable accommodations is to ensure those employees and applicants who are able to perform their essential job functions receive assistance as necessary.
- Document your efforts. This includes documenting any reasons for delays. Think about the process being challenged. Will you be able to justify a delay?
What other ideas do you have in dealing with reasonable accommodation requests?
If you are seeking an 8-hour investigator annual refresher course that contains a module on investigating reasonable accommodation cases, you may wish to consider our training. Find more information here.