(Credit: istockphoto.com/Magnetic-Mcc)
No. 4
Six Steps for
Excessive Absences
By Allison G. Marvasti and Kathryn D. Poling
One of the many types of cases likely to come across your desk as a labor or employment counselor is removal for excessive absences due to a medical condition. Consider this scenario—which is fraught with hazards for even a seasoned labor attorney: a supervisor comes to your office and requests help in dealing with a Civilian employee who is repeatedly out of the office for two, three, or more days a week. The supervisor makes it clear that it is impossible to assign tasks to that employee because the individual cannot be depended upon to be at work on any given day, and others in the office have to cover down on the employee’s work. This employee is burning through leave, or has already used all sick leave and annual leave and is asking for leave without pay. Employees in these cases range from those severely incapacitated by a serious medical condition, who can readily document their reasons for being out of the office, to those who will use any excuse to be out of the office, from a sick cat to the flu. When someone is not coming to work on a regular basis, and there is no foreseeable end to the cause of the absences, it seems like removal should be simple. However, just like any other adverse action involving a federal employee, there are important steps to follow, due process to be given, and risk to the agency for failing to adhere to the rules.1
The first step when confronted by a supervisor with an employee who is using excessive amounts of leave is to provide counsel that this can be surprisingly challenging and requires both caution and patience. It can be helpful to note that we are all just one accident or illness away from being severely disabled. Both federal law and the Equal Employment Opportunity Commission (EEOC) provide many benefits to the disabled, and failure to properly exhaust statutory requirements, such as providing accommodations, can result in adverse findings against the agency. While the demands of work are important, we also must demonstrate compassion and sensitivity to challenges faced by our employees.
When an employee is not reporting to work on a regular basis for an extensive period and there is no foreseeable end to the absences, the agency should consider proposing removal for excessive absenteeism or for physical inability to perform duties.2 While these two bases are distinct, they frequently overlap, and the process for reaching the ultimate removal is similar. There are six prerequisite steps to proposing the removal of an employee for excessive absences:
- Allow employee to exhaust all sick and personal leave;
- Notify employee of her/his rights under the Family and Medical Leave Act (FMLA)3;
- Allow employee to exhaust FMLA leave;
- Attempt to accommodate the employee’s disability;
- Attempt to reassign the employee; and
- Provide notice requiring employee to return to work or risk adverse action being taken.4
If the basis is medical inability to perform the duties of the position, steps 1-3 are not a prerequisite to taking the action since the action is not based on leave taken, but on a disqualifying medical condition. However, the agency must proceed through steps 4-5 and will need to obtain medical documentation—discussed below—of the disqualifying medical condition.5
1. Exhaust All Sick and Personal Leave
An employee facing medical issues requiring absence from the workplace may use annual leave or sick leave, as well as leave without pay (LWOP). A supervisor may ordinarily deny annual leave or LWOP if there is work that needs to be done, but the supervisor may not deny sick leave or LWOP taken because of an illness or injury that incapacitates the employee from duty.6 If the use of leave is excessive or being abused, the supervisor may be able to put the employee on a leave restriction plan.7 While the use of sick leave for personal medical reasons is an entitlement, so too is the agency’s right to ask for documentation of the need for that sick leave, provided the basis is not readily apparent.8
When absence due to medical issues has become an issue, it is usually appropriate to ask for supporting evidence. Many times, this is done after an employee misses three consecutive workdays.9 However, if the employee is regularly but intermittently absent—i.e., returning to work within three days in each absence—the supervisor may still demand supporting evidence from a medical provider.10 Note too, that we cannot dictate who provides the medical documentation. To be considered administratively acceptable, the medical documentation should include the employee’s name, a statement that the employee was incapacitated for duty and/or why reporting for duty was inadvisable, the nature of the incapacitation, the duration of the period of incapacitation, and the medical practitioner’s typed name, title, signature, address, telephone number, date(s) of office visit(s), and date of certificate.11 When the evidence does not justify the approval of sick leave, the absence may be charged to annual leave with the employee’s consent, absence without leave (AWOL) (which is a non-pay status), or LWOP.12
It is also appropriate to request medical documentation when an employee is in a position governed by medical standards, and there is some question as to whether the employee is fit for duty.13 Medical standards are most commonly found in the employee’s position description.14 The employee should be notified in advance of a Medical Evaluation Program.15 Often the employee has signed a condition of employment agreement, agreeing that employment is conditioned on meeting the medical standards of the position.16
There are limitations on when and how often we can request medical documentation. An employee who has an obvious disability does not generally require documentation. For example, we do not need medical documentation for an employee who was injured in an auto accident and is now confined to a wheelchair to document their injury. However, we may need medical documentation to address the nature of accommodations or ability to perform certain duties. Additionally, employees with chronic conditions cannot generally be required to obtain a medical statement for every absence. Consider an employee with a diagnosis of rheumatoid arthritis or migraines. These type of medical conditions are expected to have flare ups, and there is often little that a medical professional can provide to their patient. In these scenarios, it would seem unfair to require an employee to obtain redundant documentation and potentially incur unnecessary costs.
2. Notice and Exhaustion of FMLA Leave
The FMLA provides twelve workweeks of unpaid leave for an employee with a serious health condition that makes the employee unable to perform any one or more of the essential functions of their position, while guaranteeing that the employee will return to the same or equivalent position with all associated benefits.17 Even if an employee has not expressly requested FMLA leave, a constructive request may be found if they provide the agency notice of the need for leave and any requested medical certification within thirty days or “as soon as practicable” prior to any foreseeable absence, and within a reasonable time for unforeseeable events.18 However, an employee may not retroactively invoke his or her entitlement to family and medical leave unless the employee and their personal representative are physically or mentally incapable of invoking the employee’s entitlement to FMLA leave during the entire period.19 The agency can and should request medical documentation in support of a request for FMLA leave, as delineated in 5 U.S.C. § 6383.20
Family Medical Leave Act leave is only granted for the FMLA-approved serious medical conditions. A supervisor can still require that other sick leave and annual leave comply with the Office of Personnel Management (OPM) leave rules.21 The supervisor can also still deny an employee unexcused absences for causes other than the medical incapacitation.22 In cases where an employee is under a leave restriction letter, the leave restriction rules continue to apply to all other sick and annual leave not covered by the FMLA request.23
When an employee is close to exhausting their annual and sick leave, it is advisable to notify them of that fact and of the availability of FMLA leave.24 This notice should include a brief explanation of the employee’s rights to request FMLA leave.25 Because the FMLA protects an employee’s right to return to their position, the time spent in FMLA status cannot be used against an employee to support a charge of excessive absence.26 If an employee is charged with AWOL when they would have qualified for the FMLA, this could be asserted as a basis for a claim of disability discrimination.27 Because leave covered by the FMLA cannot be used against an employee to support a charge of excessive absence, all twelve weeks of FMLA leave must be exhausted before the first hour of LWOP can be used to support a removal action.
In all communications with an employee, it is important to demonstrate concern for their well-being. Consider how a U.S. District Court judge will read a memorandum from your command years after any action has been taken. Will the memorandum be cold and harsh, or compassionate and understanding? Will options be set out in a clear manner that is understandable? The tenor of written communications can have enormous impacts both with the employee and with subsequent administrative and judicial review.
3. Attempt Reasonable Accommodation28
Presumably, the supervisor has been monitoring the employee’s status and the cause(s) of absences throughout this process. Long before it becomes clear that the employee’s medical issues are preventing regular attendance, supervisors should consider whether a reasonable accommodation would allow the employee to continue to perform the essential functions of the current position.29 To initiate the reasonable accommodation process, an employee does not need to invoke the magic words of “reasonable accommodation” or fill out a specific form.30 A supervisor may be able to infer the need for a reasonable accommodation based on the employee’s description of an issue preventing performance of the duties of the position, or based on the observation of a disability impeding performance of a job function.31 Not only is reasonable accommodation a benefit to the employee, it also benefits an agency to retain an employee in whom the agency has invested ample resources into hiring, training, and developing.
Reasonable accommodation is broadly construed, but can include modification to the duties or work environment to enable an individual with a disability to perform the essential functions of the position, or to enjoy equal benefits and privileges of employment as other similarly situated employees without disabilities.32 It can include a change to the schedule of a position, to the physical aspects of the job, or some other adjustment to the job. For example, an individual who is not able to drive because of a medical condition may be offered telework. An employee who has frequent medical appointments could be placed on an alternate work schedule. Or, the agency could purchase special equipment for an employee who is physically impaired. Reasonable accommodation can also include reassignment to a vacant position, discussed in detail below.33
The key is that the accommodation must be reasonable—an agency is not required to undertake an accommodation that would cause an undue hardship to the agency.34 An undue hardship is judged based on a multitude of factors, including, but not limited to: the nature and cost of the accommodation, the financial resources of the facility, the size of the entity (including the number of employees), the type of agency operation, and the impact of the accommodation on the agency’s operations.35 Overall, the type of hardship must be a “significant difficulty or expense,” and in the government’s case, it is taken in “light of resources available to the agency as a whole,” which is a high bar.36
In developing a reasonable accommodation, the agency must have a clear understanding of the essential functions of the job as described by the position description, but also in the actual performance of duties. For example, a position description might note that the employee is expected to perform temporary duty (TDY) 25% of the time, but if the employee never was on TDY travel orders in the years before their disability, the fact that they now cannot go TDY will not support any adverse action. Without understanding what must be accomplished in the position and what can be adjusted or moved to another position, it is impossible to assess what accommodations would suffice to permit the employee to succeed in the position.37 At this stage, the medical provider’s communications are key to develop potential accommodations. Medical information requested should be targeted to obtain the information needed to make a decision on the reasonable accommodation to include how the requested accommodation will help the employee perform the duties of the position.38
By reviewing the medical provider’s documentation of the employee’s limitations in relation to the essential functions of the position, the agency must decide whether the requested accommodation, or in fact, any reasonable accommodation, will resolve the issue. It is important to note that an employee is not entitled to the accommodation of their choosing, or to any accommodation at all, if it would cause an undue hardship on the agency.39 It is critical that the agency initiate an informal, interactive process with the individual with a disability in need of the accommodation.40 A documented review of the essential functions of the employee’s position, the individual’s limitations, and a meaningful interaction with the employee regarding requested accommodations and their alternatives is needed to evidence the agency’s efforts to accommodate and to defend the agency in potential future litigation.41
In some instances, the inability to accommodate the employee will become patently obvious. For example, an individual employed to be a truck driver cannot perform those duties in a telework status (at least not yet). In other cases, the supervisor is often well advised to consider the accommodation on at least a trial basis. Consider the employee who the supervisor “knows” will not be successful if allowed to telework. Providing the employee with expectations and allowing them to work in a telework status could allow them to show superlative performance of duties in a telework status or it could prove that telework is not a reasonable accommodation because of deficient work product and output. It is much easier to defend a decision to end an accommodation rather than never offering one on at least a trial basis.
The approval of leave can be a reasonable accommodation. In the case of approval of leave as a reasonable accommodation, the analysis is not whether the employee is entitled to coverage under the FMLA or not, but whether the granting of such leave is an undue hardship.42 Therefore, under a reasonable accommodation analysis, an employee’s request to use sick leave, annual leave, or LWOP should also be considered as a reasonable accommodation request if it is related to an employee’s disability.43 Supervisors are not required to provide advanced sick leave or advanced annual leave, but can elect to do so. In cases where such advanced leave is denied, the supervisor should consider granting LWOP.
When an agency proposes removal of an employee for medical inability to work or excessive absences, the agency should be prepared to demonstrate that attempts were made, or at least considered, to reasonably accommodate the employee’s medical issues to support the removal decision.44 Failure to attempt to reasonably accommodate can be a violation of an agency’s duty to do so, and may give rise to an allegation of discrimination if the employee is a qualified individual with a disability pursuant to Army Regulation 690-12, Appendix C, meaning the employee could perform the essential functions of the job with or without reasonable accommodation.45 Failure to attempt to reasonably accommodate will also be weighed in any U.S. Merit Systems Protection Board (MSPB) assessment of the reasonableness of the penalty of removal.46
4. Attempt Reassignment
Reassignment to a vacant position is one of many potential accommodations.47 Reassignment is usually the reasonable accommodation of last resort.48 The accommodation process generally, and the reassignment consideration in particular, is a collaborative process. It should include a cooperative interaction between the employee and the agency, and the employee has some obligation to participate in the process.49 An employee should not, and cannot, be reassigned against their will as part of a reasonable accommodation.50 According to the EEOC, an employee should be reassigned to a position at the same grade and responsibility.51 If no such position is available, the employee can be reassigned to a lower grade position at the same rate of pay, with the employee’s consent.52 The employee can also be offered lower graded positions that they can voluntarily accept, with a corresponding pay reduction.53
Although the employee can suggest potential positions that would meet the employee’s needs and abilities, the agency is responsible for identifying potential positions for the employee.54 It is helpful to have a well-defined process for reassignment that advises the employee of the limitations of the reassignment process (e.g., a time limit on the search for equivalent positions, a limit on how many offers of reassignment will be made) and obtains the employee’s limitations for what he will accept in terms of reassignment (e.g., a lower graded position, a position in another location).55 If there is no reassignment available, or soon to be available, an agency has fulfilled its obligations to reasonably attempt to accommodate the employee.56 This process should be well documented.
Reassignment is particularly important in cases of medical inability. The employee may only be unfit because of strict medical standards applicable to the position, such as a requirement to run a certain distance or lift a certain amount. There are many positions in the government where such restrictions would not be a problem. For example, an agency can dictate that a firefighter must be able to lift a certain weight, but this condition of employment would not be an issue for most clerical positions. Therefore, it is necessary to survey positions for which the person is otherwise qualified. A review of the employee’s resume is necessary for the personnel office to determine if the employee is otherwise qualified for vacant positions. Reassignment is to a vacant funded position.57 An agency has no obligation to create a position that the employee can be reassigned or to move another employee to create a vacancy.58
5. Return-to-Work Notification Prerequisite to Proposing Removal for Excessive Absences
In the event the agency has moved through these steps without either improvement in the employee’s attendance or identification of a position that the employee can perform with or without accommodation, it may be time for the supervisor to consider proposing to remove the employee from federal service. When an employee has not been reporting to work on a regular basis, there are two primary charges to consider: the first is excessive absences, and the second is a physical or medical inability to perform duties.59
Excessive Absences
Generally speaking, an agency cannot penalize an employee for using approved leave.60 This includes approved LWOP. While a supervisor may always deny annual leave or LWOP if there is a valid mission requirement, they may not turn down sick leave.61 When an employee has excessive absences and the job needs to be performed, a supervisor may turn down unscheduled annual leave requests.62 However, when an employee is using annual leave because they are incapacitated for duty, a supervisor may be left with no choice but to approve it. If a supervisor cannot discipline an employee for the use of approved leave, and the supervisor must approve the leave based on the circumstances, it would appear that the supervisor is stuck. However, that is likely not the case.
Under the specific conditions laid out in Cook v. Department of the Army, and affirmed in McCauley v. Department of the Interior, an agency can take adverse action against an employee based on excessive use of approved leave.63 Cook lays out the requirements for taking an adverse action based on excessive absences:
- The employee was absent for compelling reasons beyond the employee’s control so that the employee would not have been present at work, regardless of agency approval or disapproval;
- The absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular, full-time, or part-time basis; and
- The agency can show that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.64
Such an action for removal should be taken only under unusual circumstances, e.g., when the employee is unable to return to duty because of the continuing effects of illness or injury.65
In order to satisfy Cook, the supervisor must maintain documentation of absences and the reasons given for such absences as evidence that the circumstances were beyond the employee’s control.66 This can include emails, calendars documenting days absent, or a record of phone calls reporting absence and the reason provided for the absence. Documentation of the cause of the absence is essential to demonstrate that agency approval or disapproval was immaterial, as the employee was unable to report to work.67
As the documentation of absence is gathered, recall that an agency cannot use FMLA leave days as “excessive leave” days to support a disciplinary action based on excessive absences.68 The intent behind the FMLA is to provide job security for individuals who need to be temporarily absent due to a serious medical condition (whether their own or that of a family member) and the law unambiguously promises this job security.69 As a result, the use of FMLA leave in any calculation to remove an employee is inappropriate. To ensure any removal is adequately supported, an agency must maintain all time cards and leave slips as evidence. These records must indicate when FMLA leave was taken as opposed to other types of leave to prove that all 480 hours were provided.
Next, the supervisor must provide a formal letter warning the employee of potential adverse action if they fail to return to work.70 This letter will order the employee to return to work or risk adverse action up to and including removal. While this may seem useless or even cruel if the employee is incapacitated and unable to return to work, it is a necessary step. Recall the earlier advice to give this warning compassionately. Documentation of absences and the reason for such absences must continue after the employee is ordered to return to work in order to adequately prepare for any potential adverse action against the employee. Finally, the agency needs to document the need for someone to fill the employee’s position on a regular, full-time/part-time basis; this can include evidence of hardship to the agency, such as the need for hiring contractor to support the mission or require that other employees work longer hours to cover the employee’s duties.71
(Credit: istockphoto.com/bankrx)
Physical Inability to Work
Any removal from federal service must promote the efficiency of the service.72 The MSPB has held that removal for medical inability to work is “equivalent to a charge of medical incapacity.”73 In removing an employee for a physical or medical inability to work, the first question to address is whether the position is subject to medical standards or physical requirements. If the position includes such standards, the employee may be removed if the disabling condition itself is disqualifying, its recurrence cannot be ruled out, and the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm.74 If the position description does not include medical standards, the agency must demonstrate that there exists a nexus between the employee’s condition and that employee’s inability to perform, or that the employee’s condition poses a risk of harm to the employee or others if the employee continues in the position.75
Removal on the basis of physical or medical inability to perform is not generally considered to be a disciplinary removal. Therefore, the Douglas factors do not apply to these decisions.76 Instead, the standard for review is whether the removal action went beyond the “tolerable limits of reasonableness.”77
Finally, if there is a foreseeable end to the employee’s medical issue impeding the performance of duties, the agency must document why removal is required for the efficiency of the service, instead of waiting for the employee to recover.78 This is true even if evidence of recovery comes after the removal is proposed.79 The agency will need to show the hardship endured by the employee’s absence, and why the agency needed to remove and replace the employee.80 Evidence that the agency allowed absences and an inability to work to continue for a long period will potentially undercut the argument that the agency urgently requires someone in the position.81 This is the major risk in removal for medical inability to work: an employee may provide evidence at any time, in some cases after the issuance of the removal, to establish that their medical situation has improved, resulting in the employee being returned to their position. As a result, before advising the supervisor to take this route, it is critical to have a reasonable belief that the medical condition in question will not resolve within the foreseeable future.
6. Medical Retirement
Throughout this process, it may seem that the agency is adding to the employee’s already difficult situation. This is important to consider also when deciding on which basis to remove an employee. For both the supervisory chain and the employee, it is worth considering the “Bruner Presumption.”82 In a case of removal for medical inability to perform, the Bruner Presumption assumes that the employee is entitled to disability retirement. The Bruner Presumption also shifts the burden of production to the OPM, who must disprove the employee’s entitlement to disability retirement.83 To overcome this presumption, the OPM must produce evidence that is sufficient to support a finding that the removed employee is not entitled to disability retirement benefits.84
In some instances, an employee will actively seek removal for physical inability to perform the duties of the position because they will then have the Bruner Presumption. An agency should only be taking adverse action for medical inability to perform when the evidence supports such an action. It is not fair to the agency, OPM, or taxpayer to direct a medical inability to perform action when the evidence does not support it. For example, an employee who suffers from carpal tunnel syndrome who has difficulty driving to work is not generally precluded from most jobs, and if there are excessive absences, it would be more appropriate to remove on the basis of unavailability than medical inability to perform.
Members of the 82d Airborne Division’s OSJA at Fort Bragg give the thumbs up to the jumpmaster shortly before jumping from a helicopter during an airborne operation. (Credit: Justin Case Konder)
Conclusion
The decision to remove an employee for physical inability to work or excessive absenteeism can be a difficult one to make, and is fraught with potential pitfalls. However, if done correctly, it can result in an outcome that benefits the agency and provides all possible benefits and protections to the employee. At each step in the process, there is an opportunity for cooperation, compassion, and giving the employee the greatest possible chance at success within the agency. TAL
Ms. Marvasti is an attorney-advisor, Army Materiel Command Legal Center—Aberdeen Proving Ground, Fort Belvoir Division, Fort Belvoir, Virginia.
Ms. Poling is the Division Chief, Army Materiel Command Legal Center—Aberdeen Proving Ground, Fort Belvoir Division, Fort Belvoir, Virginia.
Notes
1. A caveat: this article does not include a discussion of the requirements surrounding individual installation Collective Bargaining Agreements. Such an agreement may impact the implementation of this advice.
2. Linda D. Edwards v. Department of Transportation, 109 M.S.P.R. 579, 583-584 (2008) (reversed on other grounds 112 M.S.P.R. 82 (2009)). Other frequently used charges are for excessive absences are failure to maintain a regular and predictable work schedule; failure to follow established leave procedures; and, of course, absence without leave (AWOL) for unapproved absences. These charges will not be discussed in this article.
3. 5 U.S.C. §§ 6381–6387 (2020); 5 C.F.R. §§ 630.1201–630.1213 (2020).
4. This assertion is based on the authors’ professional experiences in labor and employment law for a combined thirty years.
5. Though not required to as a prerequisite to taking an action for medical inability to perform the duties of the position, so long as the employee is on the rolls, management should follow steps 1-3.
6. 5 C.F.R. § 630.401(a) (2020). Annual leave may be substituted for leave without pay (LWOP) under the Family Medical Leave Act (FMLA) taken by an employee with an illness or injury that is incapacitating the employee from duty. 5 C.F.R. § 630.1206(a). If the employee qualifies under the FMLA, then the leave may not be denied.
7. Appendix A contains an example of a leave restriction notice. Supra note 1, the use of a leave restriction notice may be impacted by a Collective Bargaining Agreement.
8. 5 C.F.R. § 630.405(a) (2020).
9. Supra note 1, this is an area that can frequently be impacted by a Collective Bargaining Agreement. However, since Collective Bargaining Agreements are unique to the union/installation, this article does not address this issue.
10. 5 C.F.R. § 630.405(a).
11. Id.
12. 5 C.F.R. § 630, Subparts B and C; 5 C.F.R. § 630.401(a)(2) (2020); 5 C.F.R. §§ 630.405(a), 630.405(b) (2020); 5 C.F.R. § 630.1202 (2020) (leave without pay definition).
13. 5 C.F.R § 339.301–339.304 (2020). Appendix B contains an example request for medical documentation under 5 C.F.R. § 339.303 (2020).
14. 5 C.F.R § 339.203 (2020).
15. 5 C.F.R § 339.205 (2020).
16. 5 C.F.R § 339.203; 5 C.F.R § 339.205.
17. 5 U.S.C. § 6384 (2020); 5 C.F.R. § 630.1203 (a) (2020); 5 C.F.R. § 630.1210 (2020).
18. 5 C.F.R. § 630.1207 (2020); Ellshoff v. Dept. of the Interior, 76 M.S.P.R. 54 (1997); see also Somuk v. Department of the Navy, 117 M.S.P.R. 18 (2011); Gross v. Department of Justice, 77 M.S.P.R. 83, 88 (1997); Manuel v. Westlake Polymers Corporation, 66 F.3d 758 (5th Cir. 1995).
19. 5 C.F.R. § 630.1203(b) (2020).
20. Department of Labor Form WH-380-E is the standard form of request for FMLA Medical Documentation and can be found at http://www.dol.gov/whd/forms/wh-380-e.pdf. Appendix C may be used in conjunction with a WH-380-E to request medical documentation in an FMLA case.
21. 5 C.F.R. § 630.1206(b)(1) (2020).
22. Employee shall claim FMLA leave for particular illness(es). 5 C.F.R. § 630.1203(a)(4) (2020).
23. See Appendix C for an example of an FMLA notice in conjunction with a leave restriction plan.
24. See Appendix D for an example of a request for documentation under the FMLA.
25. It is also recommended that the agency inform the employee of rights under the Voluntary Leave Transfer Program at the same time. 5 U.S.C. § 6331-6333 (2020); 5 C.F.R. § 630.901–630.912 (2020). See Appendix E for an example FMLA notice with information regarding the Voluntary Leave Transfer Program.
26. McCauley v. Department of the Interior, 116 M.S.P.R. 484 (2011).
27. Ellshoff v. Department of Interior, 76 M.S.P.R. 54 (1997).
28. Army Regulation 690-12, Equal Employment Opportunity and Diversity, Appendix C, paragraph C-1(e) defines “reasonable accommodation” as: “any change in the work environment or the way things are customarily done that would enable an individual with a disability to enjoy [equal employment opportunity].” U.S. Dep’t of Army, Reg. 690-12, Equal Employment Opportunity and Diversity app. C, para. C-1(e) (12 Dec. 2019) [hereinafter AR 690-12].
29. Id. app. C (laying out the procedures for requesting and evaluating reasonable accommodation requests). Id. fig. C-2 (providing a format for a request).
30. 29 C.F.R. § 1614.203(d)(3)(i)(D) (2020); AR 690-12, supra note 28, app. C, para. C-2.
31. Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285 (1996).
32. 29 C.F.R. § 1614.102(a)(8) (2020); 29 C.F.R. § 1614.203(d)(3)(i)(D)-(I) (2020); 29 C.F.R. § 1630.2(o) (2020); AR 690-12, supra note 28, app. C (laying out the procedures for requesting and evaluating reasonable accommodation requests).
33. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); AR 690-12, supra note 28, app. C, para. C-6.
34. 29 C.F.R. § 1614.102(a)(8); 29 C.F.R. § 1630.9(a) (2020).
35. 29 C.F.R. § 1614.203(a)(10) (2020); 29 C.F.R. § 1630.2(o)(4) (2020); 29 C.F.R. § 1630.2(p) (2020).
36. 29 C.F.R. § 1614.203(a)(10); 29 C.F.R. § 1614.203(d)(3)(ii) (2020); 29 C.F.R. § 1630.2(p) (2020).
37. Ignacio v. United States Postal Service, 16 M.S.P.R. 530 (1983).
38. Army Regulation 690-12, paragraph C-5(c) states:
Medical information will be requested only to the extent reasonably necessary to establish that the requester is an individual with a disability and/or needs the requested accommodation and provide information on the nature, severity, and expected duration of the impairment (for example, functional limitations, symptoms, side effects of any treatments, and so forth); the activity or activities the impairment limits; the extent to which the impairment limits the individual’s ability to perform the activity or activities; and/or why the individual requires the particular accommodation requested and how the accommodation will assist the individual to apply for a job, perform the essential functions of the job, or have the benefits of the workplace.
AR 690-12, supra note 28, para. C-5(c).
39. Miller v. Department of the Army, 121 M.S.P.R. 189 (2014); 29 C.F.R. 1614.203(a)(10) (referring to the definition of undue hardship in 29 C.F.R. § 1630.2(p)); AR 690-12, supra note 28, app. C para. C-7, fig. C-3.
40. 29 C.F.R. § 1614.203(d)(3)(i)(H) (2020); 29 C.F.R. § 1630.2(o)(3) (2020); AR 690-12, supra note 28, fig. C-4 (providing a template for the interactive process).
41. AR 690-12, supra note 28, fig. C-5–C-6 (providing a format for documenting the decision-maker’s decision process).
42. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); AR 690-12, supra note 28, app. C, para. C-3(d).
43. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C); AR 690-12, supra note 28, app. C, para. C-3(d).
44. Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518, 523-24 (2003).
45. 29 C.F.R. § 1614.203(d)(3)(i)(A) (2020); AR 690-12, supra note 28, app. C, para. C-1(d); Petitioner v. Johnson, 2014 EEOPUB LEXIS 1810, 115 FEOR (LRP) 22, EEOC (IHS) 320110053 (E.E.O.C. July 10, 2014) (finding that attendance is not an essential function of a position, but rather a means by which employee performs essential functions of position); aff’d in Reynaldo Alvara v. Department of Homeland Security, 121 M.S.P.R. 613 (2014).
46. Marshall-Carter, 94 M.S.P.R. at 524.
47. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii) (2020); AR 690-12, supra note 28, para. C-6(a).
48. 29 C.F.R. § 1614.203(d)(3)(i)(B)-(C) (2020); 29 C.F.R. § 1630.2(o); AR 690-12, supra note 28, para. C-6(a).
49. Collins v. United States Postal Service, 100 M.S.P.R. 332 (2005); see also Miller v. Department of the Army, 121 M.S.P.R. 189 (2014).
50. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. C-6(a)-(c).
51. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. C-6(a)-(c).
52. 29 C.F.R. § 1630.2(o) app. (2020).
53. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. C-6(a).
54. U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act para. 28 (Oct. 17, 2002), https://www.eeoc.gov/policy/docs/accommodation.html.
55. See Appendix F for a sample Counseling Checklist for reassignment.
56. Acosta v. VA, EEOC No. 0320100028 (July 20, 2010); 29 C.F.R. § 1630.2(o) app.
57. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. C-6(a).
58. 29 C.F.R. § 1614.203(d)(3)(i)(B); 29 C.F.R. § 1630.2(o)(2)(ii); AR 690-12, supra note 28, para. C-6(a).
59. Edwards v. Department of Transportation, 109 M.S.P.R. 579, 584 (2008).
60. Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401 (1997).
61. 5 C.F.R. § 630.401(a) (2020).
62. Young v. United States Postal Service, 79 M.S.P.R. 25, 38-39 (1998).
63. Cook v. Department of the Army, 18 M.S.P.R. 610 (1984); see also McCauley v. Department of the Interior, 116 M.S.P.R. 484, 489-90 (2011) (expressly including all types of approved leave in the Cook analysis for excessive absence charges); Fox v. Department of the Army, 120 M.S.P.R. 529 (2014). Also note, in the event of unapproved absence, the appropriate charge would be absence without leave (AWOL). 5 C.F.R. § 630.1208(i)(1) (2020).
64. Cook, 18 M.S.P.R. at 611-12; see also Combs v. Social Security Administration, 91 M.S.P.R. 148, 154 (2002); Gaskins v. Department of the Air Force, 36 M.S.P.R. 331, 334 (1988).
65. Cook, 18 M.S.P.R. at 611-12; see also Combs, 91 M.S.P.R. at 154; Gaskins, 36 M.S.P.R. at 334.
66. Cook, 18 M.S.P.R. at 611-12; see also Combs v. Social Security Administration, 91 M.S.P.R. 148, 154 (2002); Gaskins, 36 M.S.P.R. at 334.
67. Smisson v. Department of Air Force, 85 M.S.P.R. 427 (2000).
68. McCauley v. Department of the Interior, 116 M.S.P.R. 484 (2011).
69. McCauley, 116 M.S.P.R. at 489-90.
70. See Appendix G for an example letter warning the employee of potential adverse action if they fail to return to work.
71. Cook, 18 M.S.P.R. at 611-12; see also Combs v. Social Security Administration, 91 M.S.P.R. 148, 154 (2002); Gaskins v. Department of the Air Force, 36 M.S.P.R. 331, 334 (1988).
72. 5 U.S.C § 7513(a) (2020); Jackson v. U.S. Postal Service, 666 F.2d 258 (5th Cir. 1982).
73. Sebald v. Department of the Air Force, 32 M.S.P.R. 164 (1987), see also Ellshoff v. Department of the Interior, 76 M.S.P.R. 54 (1997).
74. Brown v. Department of the Interior, 121 M.S.P.R. 205 (2014); see also Sanders v. Department of Homeland Security, 122 M.S.P.B. 144 (2015); Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008). 75. Fox v. Department of the Army, 120 M.S.P.R. 529 (2014), citing Marshall-Carter v. Department of Veterans Affairs, 94 M.S.P.R. 518 (2003).
76. Brown, 121 M.S.P.R. at 205; see also Marshall-Carter, 94 M.S.P.R. at 525; see also Sanders, 122 M.S.P.B. at 144.
77. Marshall-Carter, 94 M.S.P.R. at 518; see also Miller v. Department of the Army, 121 M.S.P.R. 189 (2014).
78. Social Security Administration v. Mills, 73 M.S.P.R. 463 (1996); Edwards v. Department of Transportation, 109 M.S.P.R. 579 (2008).
79. Street v. Department of the Army, 23 M.S.P.R. 335, 342 (1984); Sanders, 122 M.S.P.R. 144 (2015).
80. Edwards, 109 M.S.P.R. at 586; see also Walker v. Department of the Air Force, 24 M.S.P.R. 44, 45-47 (1984).
81. Edwards, 109 M.S.P.R. at 586; see also Walker, 24 M.S.P.R. at 44.
82. Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); see also McDonald v. Office of Personnel Management, 50 M.S.P.R. 164, 169 (1991).
83. Bruner, 996 F.2d at 294; see also McDonald, 50 M.S.P.R. at 169.
84. Supra note 83.
