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Light Duty, Reasonable Accommodation Information


Check out "General Summary" of the Duties for a city carrier| mail handler |manual distribution clerk| automation clerk| automated flat sorter clerk | spbs clerk. The summaries are designed to assist treating physicians in their recommendations for appropriate work restrictions. 10/21/03


 Arbitration Summary: USPS Improperly Denied MPE Mechanic Light Duty

 

The issue in this case revolved around whether the Postal Service’s decision to deny the grievant light duty within his restrictions violated Article 13 of the National Agreement as well as the Local Memorandum of Understanding.

The arbitrator sustained the Union’s grievance and awarded the grievant full back pay (the grievant had been returned to work under a previous agreement) for the entire length of time the grievant was in an off-duty status.

The grievant in this case had been injured on duty several years ago and his OWCP claim had been approved by OWCP. At some point in time the grievant’s medical condition had stabilized and he was classified as partially disable and given a Modified Duty Assignment in his present assignment as a MPE Mechanic. Sometime after accepting this job offer the Postal Service attempted to get the grievant to accept a different modified job offer that was on a different tour as well as containing clerical functions. The Postal Service sent a job offer to the Grievant’s home by mail in March 1997 with a few days to accept or reject the offered position. The Grievant accepted the proposal from the Service but filed a grievance protesting that the job was not fully within his restrictions, and claiming that the Service had not followed proper procedures in requiring him to change from his regular duty assignment. The grievance was resolved in September 1997 at Step 3 when the Service representative found “no evidence that management complied with the criteria defined in ELM 546.141a” in making the new job assignment. Additionally, the Union had objected to this job assignment, as it had improperly crossed craft lines causing the Grievant to perform Clerk Craft duties.

 

It was undisputed that as a result of the settlement, the Grievant was returned to his regular position, with his regular hours in the Maintenance Department performing MPE7 work, and continued to perform MPE7 work within his physical limitations up until the events which gave rise to the instant grievances. The Union asserts that the Grievant’ s work afforded him 8 hours per day, 40 hours per week until April 30, 1998. The work performed by the Grievant consisted largely of routine repair and rebuilding of parcel sorter carriages, with other duties occasionally assigned. Unfortunately, the Service reported to OWCP that a suitable job offer had been made to the Grievant which he had refused. As a consequence, OWCP issued a decision January 21, 1998, in which it disallowed any further claims by the Grievant for compensation. OWCP acknowledged that this disallowance applied only to compensation and that the Grievant’s “case will remain open for medical benefits only.” The grievant then requested a light duty assignment and this request was approved. In this assignment he continued to perform work within his position description of a MPE Mechanic. The Postal Service subsequently demanded further medical documentation regarding the grievant’s restrictions and subsequently denied his light duty request. The Postal Service claimed that no work within his physical restrictions existed. The grievant filed a grievance protesting the Postal Service’s actions. This grievance was resolved approximately one year later with an agreement to return the grievant to work within his restrictions. The issue of back pay was not resolved and was the subject of this grievance.

The Union argued it is the position of the Union that the Service violated the National Agreement in handling the Grievant’s on-the-job injury and providing appropriate light duty for the Grievant. The Union notes the partial settlement of the instant grievances, but claims that the Grievant is due back-pay as a result of the actions by the Service. The Union, therefore, requests that the Arbitrator sustain the back-pay remedy portion of the instant grievances. The Postal Service maintained that its actions did not violate the National Agreement.

The arbitrator in ruling for the Union correctly reasoned:

“… Rather, this Arbitrator is persuaded by the record evidence, including the contractual language and the clear misapplication of the Parties’ settlement agreement, that the Grievant was not afforded due consideration for light duty work after suffering his workplace injury. Rather, as the Union contends, the Arbitrator must agree that the Service disregarded the rights to which the Grievant was entitled under the collective bargaining agreement and the ELM, as well as the Parties’ settlement agreement. Specifically, the Service inappropriately insisted that the Grievant request permanent light duty; improperly demanded that the Grievant produce new medical documentation; and clearly denied the Grievant the right to perform the duties of his own position or to perform any other duties. The Undersigned Arbitrator notes that the Grievant had been performing in his position throughout this time yet the Service declared that it had no work available for the Grievant. Accordingly, the Arbitrator must find in favor of the Union and award a back-pay remedy to the Grievant for losses he incurred as a result of the improper actions of the Service.”

Gary Kloepfer
Assistant Director "A"
(202) 842-4213
(202) 289-3746 FAX
 

 

Reasonable Accommodation And Undue Hardship
Under The Americans With Disabilities Act by EEOC

This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship. Title I of the ADA requires 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. This Guidance sets forth an employer's legal obligations regarding reasonable accommodation; however, employers may provide more than the law requires.

This Guidance examines what "reasonable accommodation" means and who is entitled to receive it. The Guidance addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer's ability to ask questions and seek documentation after a request has been made.

The Guidance discusses reasonable accommodations applicable to the hiring process and to the benefits and privileges of employment. The Guidance also covers different types of reasonable accommodations related to job performance, including job restructuring, leave, modified or part-time schedules, modified workplace policies, and reassignment. Questions concerning the relationship between the ADA and the Family and Medical Leave Act (FMLA) are examined as they affect leave and modified schedules. Reassignment issues addressed include who is entitled to reassignment and the extent to which an employer must search for a vacant position. The Guidance also examines issues concerning the interplay between reasonable accommodations and conduct rules.

The final section of this Guidance discusses undue hardship, including when requests for schedule modifications and leave may be denied.

- More information on Reasonable Accommodation (Alaska APWU)

 

Light Duty v. Reasonable Accommodation

J.R. Pritchett
Utah Employee Advocates

     Most Postal employees are aware that if they are injured on-the-job, the Postal Service must provide a Limited Duty assignment to the injured employee, that is within the employee’s medical restrictions.  The Postal Service is motivated to provide Limited Duty assignments to on-the-job ill or injured employees, in order to avoid lost work-day injuries.

     When a Postal employee becomes permanently ill or injured off-the-job, what are their options?  Postal unions have attempted to address these concerns by negotiating Light Duty provisions in Article 13 of the Collective Bargaining Agreement (CBA).  Though it does provide for Light Duty assignments for both temporary and permanently ill or injured employees, my specific concerns regard the permanently ill or injured employee.

     Article 13, Section 2B(1) states in pertinent part, “(a)ny ill or injured full-time regular or (PTF) employee having a minimum of five years of postal service…can submit a voluntary request (emphasis added) for a permanent reassignment to light duty or other assignment…” 

     The reason that the language specifies that the request is voluntary is because of other provisions in Article 13. If you voluntarily request Light Duty under Article 13 you agree that the assignment, the area of the assignment, the hours of duty, and the number of hours that you would be allowed to work, would be at the discretion of the installation head.  Additionally, if the employee is provided with a Light Duty assignment, the agency can require medical documentation as often as they deem, and at least once a year.  Other contractual protections, such as a guarantee on the amount of hours worked, or assignments based on seniority, are waived when an employee submits a Light Duty request under Article 13.

     The EEOC has affirmed that an employee who voluntarily applies for a light duty assignment under Article 13 has “no guarantee of eight hour work days”.  See Irving v. Runyon, EEOC No. 01940501 (November 1st, 1994).

     Commissioners have recognized the potential of permanently ill or injured employees losing certain rights when they apply for Light Duty under Article 13.  Referring to those provisions, the Commission has noted “that a policy like this may have to be modified in cases where an individual with a disability needs a reassignment”.  Tolar v. Henderson, EEOC No. 01965083 ( 16 December, 1998 ).

     Typically, when an employee has a permanent off-the-job illness or injury, the Postal Service will provide the employee with a Light Duty packet or form.  Usually appearing as an instruction rather than an option, employees are expected to complete and sign the Light Duty Request form.  Too frequently, once the employee submits a request for permanent Light Duty, they find that they are subjected to removal action for failure to perform the essential functions of their position.

     The key to avoiding this pitfall is first to determine whether the permanent illness or injury constitutes a “disability” as defined by the Rehabilitation Act and the Americans with Disabilities Act. The disability must affect “major life activities” to qualify under the definition. Additionally, the illness or injury cannot be of a temporary or transitory nature. Just last year the Supreme Court made additional rulings regarding persons with disabilities.  They opined that if the disability can be overcome with corrective measures (say with medications or prosthetics), then the person can fail to meet the definition of a disabled individual.

     If the employee meets the definition of a disabled person, then the employee should submit a request for Reasonable Accommodation.  This request is not only covered by the Rehab Act and the ADA, but also agency manual EL-307 which specifically addresses the procedure for making such a request.  In addition, an employee is not required to have been an employee for five years, as is the case with the Light Duty provision.

     EL 307 , Section 130 Light Duty, states in pertinent part, “…The reasonable accommodation guidelines described in this handbook do not apply to temporarily injured persons.  Individuals returning to work with permanent physical limitations resulting from non work-related injury or illness should be afforded reasonable accommodation under these guidelines…”

     Reasonable Accommodation provides protections under the law which allow an employee to articulate what accommodation(s) they require, as well as ensure that the employee is entitled to other privileges and benefits of employment (such as being able to work a full eight hours).

     Whenever an employee makes a request for reasonable accommodation, it’s supposed to trigger an interactive process. The agency becomes obligated to discuss accommodations with the employee, and make specific searches for a position that the employee could then perform.

     When the Postal Service realized that an employee’s request for reasonable accommodation required the agency’s participation in the interactive process, they invented the “Reasonable Accommodation Committee” (RAC).  As a subterfuge, the agency’s RAC is intended to meet the agency’s obligation to participate in that interactive process.  There have been more than a few occasions when a supervisor or manager will advise an employee, who has made a request for reasonable accommodation, that they will appear before the committee to represent the employee’s interests.  Can you really believe that a supervisor, who may have refused to provide the requested accommodation, is really going to represent the employee’s best interests at a RAC meeting?

      Most RAC’s are staffed with managers, Human Resource Specialists, Safety Specialists, medical unit personnel, and the occasional EEO Counselor and/or union representative.  Generally, RAC committee members have little knowledge, or understanding of the requirements of the Rehab Act and the ADA.  Even EEO Counselors have demonstrated little understanding of these laws.

      It is important for permanently ill or injured employees, and for union leaders and members, to know the differences between Light Duty and Reasonable Accommodation.  As currently stated, Article 13 can become an unsuspecting disaster for disabled and/or permanently ill or injured employees.  Union members and leaders should discuss this issue at the local level to determine whether language of Article 13 should be supplemented to incorporate the same legal theory, and to ensure the proper protections, of employees under the Rehabilitation Act, the ADA, and the EL-307.

 ADDENDUM

      In a reversal of prior decisions involving Light Duty, the EEOC accepted an appeal of a former custodian from San Diego, who was permanently injured in an off-the-job auto accident.  After his recovery, the employee attempted to return to duty with medical restrictions, limiting him in, among other things, to a lifting restriction of 5-10 lbs.  He requested Light Duty under Article 13, however the RAC denied his request, stating that he was ineligible for a vacant position because those positions were reserved for employees on ‘Limited Duty’ (those having sustained an on-the-job injury).

      The EEOC opined that “the distinction between light and limited duty has no bearing on the agency’s duties under the Rehabilitation Act”.  See  McCutchen v. Henderson, EEOC Appeal No. A1A00408 (01/08/01).  Article 13 notwithstanding, if you are permanently disabled, and your disability affects your major life activities, you may be afforded more protection under the law by requesting reasonable accommodation pursuant to the Rehabilitation Act, the Americans with Disabilities Act, and the agency manual EL-307.

**links added by postalreporter

If you have any questions or comments regarding this subject, or any other EEO or M.S.P.B. issue, please contact:

Mr. J.R. Pritchett, Employee Advocate
@ UTAH LEGAL ADVOCATES
1341 South State Street, Suite 312-B
Salt Lake City, UT 84115-5474
Phone: (801) 486-2325
Fax: (801) 486-2326
Contact via e-mail: Utah Employee Advocate
Or visit my Web page at: www.postalemployeeadvocate.com 

UTAH LEGAL ADVOCATES are not attorneys. The above article has been prepared for educational and informational purposes only. It does not constitute legal advice or legal opinions. Readers should not act upon this information without seeking professional counsel. The opinions expressed in this article are those of the author, and not those of the postalreporter .

Utah Legal Advocates in the News: Worker Reinstated, Credits Florida Newspaper

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Mike Watson - for OWCP issues


ARTICLE 13 of the Collective Bargaining Agreement

ASSIGNMENT OF ILL OR INJURED REGULAR WORKFORCE EMPLOYEES

Section 1. Introduction

A. Part-time fixed schedule employees assigned in the craft unit shall be considered to be in a separate category. All provisions of this Article apply to part-time fixed schedule employees within their own category.

B. The U.S. Postal Service and the Union recognizing their responsibility to aid and assist deserving full-time regular or part-time flexible employees who through illness or injury are unable to perform their regularly assigned duties, agree to the following provisions and conditions for reassignment to temporary or permanent light duty or other assignments. It will be the responsibility of each installation head to implement the provisions of this Agreement within the installation, after local negotiations.

Section 2. Employee's Request for Reassignment

A. Temporary Reassignment

Any full-time regular or part-time flexible employee recuperating from a serious illness or injury and temporarily unable to perform the assigned duties may voluntarily submit a written request to the installation head for temporary assignment to a light duty or other assignment. The request shall be supported by a medical statement from a licensed physician or by a written statement from a licensed chiropractor stating, when possible, the anticipated duration of the convalescence period. Such employee agrees to submit to a further examination by a Public Health Service doctor or physician designated by the installation head, if that official so requests.

B. Permanent Reassignment

1. Any ill or injured full-time regular or part-time flexible employee having a minimum of five years of postal service, or any full-time regular or part-time flexible employee who sustained injury on duty, regardless of years of service, while performing the assigned duties can submit a voluntary request for permanent reassignment to light duty or other assignment to the installation head if the employee is permanently unable to perform all or part of the assigned duties. The request shall be accompanied by a medical certificate from the United States Public Health Service or a physician designated by the installation head giving full evidence of the physical condition of the employee, the need for reassignment, and the ability of the employee to perform other duties. A certificate from the employee's personal physician will not be acceptable.

2. The following procedures are the exclusive procedures for resolving a disagreement between the employee's physician and the physician designated by the USPS concerning the medical condition of an employee who has requested a permanent light duty assignment. These procedures shall not apply to cases where the employee's medical condition arose out of an occupational illness or injury. On request of the Union, a third physician will be selected from a list of five Board Certified Specialists in the medical field for the condition in question, the list to be supplied by the local Medical Society. The physician will be selected by the alternate striking of names from the list by the Union and the Employer. The Employer will supply the selected physician with all relevant facts including job description and occupational physical requirements. The decision of the third physician will be final as to the employee's medical condition and occupational limitations, if any. Any other issues relating to the employee's entitlement to a light duty assignment shall be resolved through the grievance-arbitration procedure. The costs of the services of the third physician shall be shared by the Union and the Employer.

C. Installation heads shall show the greatest consideration for full-time regular or part-time flexible employees requiring light duty or other assignments, giving each request careful attention, and reassign such employees to the extent possible in the employee's office. When a request is refused, the installation head shall notify the concerned employee in writing, stating the reasons for the inability to reassign the employee.

Section 3. Local Implementation

Due to varied size installations and conditions within installations, the following important items having a direct bearing on these reassignment procedures (establishment of light duty assignments) should be determined by local negotiations.

A. Through local negotiations, each office will establish the assignments that are to be considered light duty within each craft represented in the office. These negotiations should explore ways and means to make adjustments in normal assignments, to convert them to light duty assignments without seriously affecting the production of the assignment.

B. Light duty assignments may be established from part-time hours, to consist of 8 hours or less in a service day and 40 hours or less in a service week. The establishment of such assignment does not guarantee any hours to a part-time flexible employee.

C. Number of Light Duty Assignments. The number of assignments within each craft that may be reserved for temporary or permanent light duty assignments, consistent with good business practices, shall be determined by past experience as to the number of reassignments that can be expected during each year, and the method used in reserving these assignments to insure that no assigned full-time regular employee will be adversely affected, will be defined through local negotiations. The light duty employee's tour hours, work location and basic work week shall be those of the light duty assignment and the needs of the service, whether or not the same as for the employee's previous duty assignment.

Section 4. General Policy Procedures

A. Every effort shall be made to reassign the concerned employee within the employee's present craft or occupational group, even if such assignment reduces the number of hours of work for the supplemental work force. After all efforts are exhausted in this area, consideration will be given to reassignment to another craft or occupational group within the same installation.

B. The full-time regular or part-time flexible employee must be able to meet the qualifications of the position to which the employee is reassigned on a permanent basis. On a temporary reassignment, qualifications can be modified provided excessive hours are not used in the operation.

C. The reassignment of a full-time regular or part-time flexible employee to a temporary or permanent light duty or other assignment shall not be made to the detriment of any full-time regular on a scheduled assignment or give a reassigned part-time flexible preference over other part-time flexible employees.

D. The reassignment of a full-time regular or part-time flexible employee under the provisions of this Article to an agreed-upon light duty temporary or permanent or other assignment within the office, such as type of assignment, area of assignment, hours of duty, etc., will be the decision of the installation head who will be guided by the examining physician's report, employee's ability to reach the place of employment and ability to perform the duties involved.

E. An additional full-time regular position can be authorized within the craft or occupational group to which the employee is being reassigned, if the additional position can be established out of the part-time hours being used in that operation without increasing the overall hour usage. If this cannot be accomplished, then consideration will be given to reassignment to an existing vacancy.

F. The installation head shall review each light duty reassignment at least once each year, or at any time the installation head has reason to believe the incumbent is able to perform satisfactorily in other than the light duty assignment the employee occupies. This review is to determine the need for continuation of the employee in the light duty assignment. Such employee may be requested to submit to a medical review by the United States Public Health Service or by a physician designated by the installation head if the installation head believes such examination to be necessary.

G. The following procedures are the exclusive procedures for resolving a disagreement between the employee's physician and the physician designated by the USPS concerning the medical condition of an employee who is on a light duty assignment. These procedures shall not apply to cases where the employee's medical condition arose out of an occupational illness or injury. On request of the Union, a third physician will be selected from a list of five Board Certified Specialists in the medical field for the condition in question, the list to be supplied by the local Medical Society. The physician will be selected by the alternate striking of names from the list by the Union and the Employer. The Employer will supply the selected physician with all relevant facts including job description and occupational physical requirements. The decision of the third physician will be final as to the employee's medical condition and occupational limitations, if any. Any other issues relating to the employee's entitlement to a light duty assignment shall be resolved through the grievance-arbitration procedure. The costs of the services of the third physician shall be shared by the Union and the Employer.

H. When a full-time regular employee in a temporary light duty assignment is declared recovered on medical review, the employee shall be returned to the employee's former duty assignment, if it has not been discontinued. If such former regular assignment has been discontinued the employee becomes an unassigned full-time regular employee.

I. If a full-time regular employee is reassigned in another craft for permanent light duty and later is declared recovered, on medical review, the employee shall be returned to the first available full-time regular vacancy in complement in the employee's former craft. Pending return to such former craft, the employee shall be an unassigned full-time regular employee. The employee's seniority shall be restored to include service in the light duty assignment.

J. When a full-time regular employee who has been awarded a permanent light duty assignment within the employee's own craft is declared recovered, on medical review, the employee shall become an unassigned full-time regular employee.

K. When a part-time flexible on temporary light duty is declared recovered, the employee's detail to light duty shall be terminated.

L. When a part-time flexible who has been reassigned in another craft on permanent light duty is declared recovered, such assignment to light duty shall be terminated. Section 4.I, above, does not apply even though the employee has advanced to full-time regular while on light duty.

Section 5. Filling Vacancies Due to Reassignment of an Employee to Another Craft

When it is necessary to permanently reassign an ill or injured full-time regular or part-time flexible employee who is unable to perform the regularly assigned duties, from one craft to another craft within the office, the following procedures will be followed:

A. When the reassigned employee is a full-time regular employee, the resulting full-time regular vacancy in the complement, not necessarily in the particular duty assignment of the losing craft from which the employee is being reassigned, shall be posted to give the senior of the full-time regular employees in the gaining craft the opportunity to be reassigned to the vacancy, if desired.

B. If no full-time regular employee accepts the opportunity to be assigned to the vacancy in the complement, not necessarily in the particular duty assignment in the other craft, the senior of the part-time flexibles on the opposite roll who wishes to accept the vacancy shall be assigned to the full-time regular vacancy in the complement of the craft of the reassigned employee.

C. When the reassigned employee is a part-time flexible, the resulting vacancy in the losing craft shall be posted to give the senior of the full-time regular or part-time flexible employees in the gaining craft the opportunity to be assigned to the part-time flexible vacancy, if desired, to begin a new period of seniority at the foot of the part-time flexible roll.

D. The rule in A and B, above, applies when a full-time regular employee on permanent light duty is declared recovered and is returned to the employee's former craft, to give the senior of the full-time regular or part-time flexible employees in the gaining craft the opportunity, if desired, to be assigned in the resulting full-time regular vacancy in the complement, not necessarily in the particular duty assignment of the losing craft.

Section 6. Seniority of an Employee Assigned to Another Craft

A. Except as provided for in Section 4.I, above, a full-time regular employee assigned to another craft or occupational group in the same or lower level in the same installation shall take the seniority for preferred tours and assignments, whichever is the lesser of (a) one day junior to the junior full-time regular employee in the craft or occupational group, (b) retain the seniority the employee had in the employee's former craft.

B. A part-time flexible employee who is permanently assigned to a full-time regular or part-time flexible assignment in another craft, under the provisions of this Article, shall begin a new period of seniority. If assigned as a part-time flexible, it shall be at the foot of the part-time flexible roll.

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Supreme Court Decision on Seniority and Employer's Obligation to Accommodate Under Americans with Disabilities Act

Greg Bell
Industrial Relations Director

The U.S. Supreme Court recently issued a decision on seniority rules and an employer's obligation to accommodate a disabled employee under the Americans with Disabilities Act. (U.S. Airways, Inc. v. Robert Barnett, U.S. Supreme Court, 122 S.Ct. 1516; 4/29/2002) The U.S. Supreme Court ruled that when a requested accommodation for a disabled employee would place him or her in a position that violates the rules of a seniority system, the accommodation would ordinarily not be reasonable and thus would not be required by the Americans with Disabilities Act (ADA). The Court specified that in ADA cases an employer will ordinarily prevail as a matter of law if a seniority system is in place, unless the disabled employee shows that there are special circumstances surrounding the particular case that demonstrate that the accommodation is nonetheless reasonable.

This case arose after an employee of U.S. Airways, Inc. injured his back while he was working as a cargo handler and transferred to a less physically demanding mailroom job. When his new position was opened to seniority-based employee bidding under U.S. Airways' seniority system, the employee learned that employees senior to him intended to bid for the mailroom job. He then asked U.S. Airways to accommodate his disability-imposed limitations by making an exception to its seniority rules to allow him to stay in the mailroom. However, U.S. Airways decided not to make an exception and the employee lost his job. He thereafter filed an action under the Americans with Disabilities Act claiming that the mailroom job constituted a reasonable accommodation of his disability and U.S. Airways thus unlawfully discriminated against him by not assigning him the job. The District Court determined that the alteration of the employer's seniority policy would result in undue hardship to the company and therefore, the company should be granted summary judgment in its favor. Upon appeal to the U.S. Court of Appeals for the Ninth Circuit, the court reversed the summary decision in the employer's favor and said "a seniority system is not a per se bar to reassignment" and that it was necessary for there to be a case-by-case analysis to determine whether any particular reassignment would constitute an undue hardship to the employer. The U.S. Supreme Court thereafter accepted review of the case, issuing a decision that vacated the U.S. Court of Appeals' decision and remanding the case for further proceedings.

U.S. Airways argued that the existence of a seniority system should automatically prevail in the case of a disabled employee seeking accommodation. The employee conceded that while a violation of seniority rules may show that an accommodation will result in an undue hardship, an employer should have to demonstrate that such hardship exists. He contended further that since the meaning of reasonable accommodation extends only to its effectiveness and a seniority system has nothing to do with an accommodation's effectiveness, an employer must demonstrate hardship on a case-by-case basis in order to prevail.

In its decision, the Supreme Court indicated that the Americans with Disabilities Act says that "discrimination" includes an employer's "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified . . . employee, unless the employer can demonstrate that the accommodation would pose an undue hardship on the operation of [its] business." Then, addressing U.S. Airways argument, it determined that the ADA does not create an automatic exemption to the Act's requirements in the case of seniority systems. It said that "[t]he simple fact that an accommodation would provide a `preference' _ in the sense that it would permit the worker with a disability to violate a rule that others must obey _ cannot, in and of itself, automatically show that the accommodation is not `reasonable.'"

However, the Court also disagreed with the employee's arguments. It stressed that Congress did not intend that reasonable only means effective and indicated that lower courts have "reconciled the phrases `reasonable accommodation' and `undue hardship' in a practical way." Accepting these courts' analyses, the Supreme Court said that they have held that "a plaintiff/employee (to defeat a defendant employer's motion for summary judgment) need only show that an `accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." "Once the plaintiff has made this showing," the Court continued, "the defendant/employer then must show special (typically case-specific) circumstances that demonstrate undue hardship in particular circumstances."

The Supreme Court then reasoned that "the answer to the question" as to whether a proposed accommodation that would normally be reasonable has become unreasonable by virtue of the fact that it violates a seniority system "ordinarily is `yes.'" The ADA "does not require proof on a case-by-case basis that a seniority system should prevail . . . [t]hat is because it would not be reasonable in the run of cases that the assignment in question trump the rules of a seniority system." "To the contrary," according to the Court, "it will ordinarily be unreasonable for the assignment to prevail." The Supreme Court stressed that "to require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment _ expectations upon which the seniority system's benefits depend." In addition, the Court reasoned that "[t]hat is because such a rule would substitute a complex case-specific `accommodation' decision made by management for the more uniform, impersonal operation of seniority rules."

The Court indicated, however, that the plaintiff in such a case "remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested `accommodation' is `reasonable' on the particular facts." It then indicated that such a showing might be that "the [seniority] system contains exceptions such that, in the circumstances, one further exception is not likely to matter."

Click here for a copy of the decision

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Enforcement Guidance:Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

See Articles written by Dan Sullivan

 

The ADA: Your Employment Rights as an Individual With a Disability

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in State and local government services, public accommodations, transportation and telecommunications. This booklet explains the part of the ADA that prohibits job discrimination. This part of the law is enforced by the U.S. Equal Employment Opportunity Commission and State and local civil rights enforcement agencies that work with the Commission.


What Employers Are Covered by the ADA?

Job discrimination against people with disabilities is illegal if practiced by:

  • private employers,
  • state and local governments,
  • employment agencies,
  • labor organizations,
  • and labor-management committees.

The part of the ADA enforced by the EEOC outlaws job discrimination by:

  • all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and
  • all employers, including State and local government employers, with 15 or more employees after July 26, 1994.

Another part of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992.

Because the ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by State and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.

Are You Protected by The ADA?

If you have a disability and are qualified to do a job, the ADA protects you from job discrimination on the basis of your disability. Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. The ADA also protects you if you have a history of such a disability, or if an employer believes that you have such a disability, even if you don't.

To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.

What is Reasonable Accommodation?

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

  • providing or modifying equipment or devices,
  • job restructuring,
  • part-time or modified work schedules,
  • reassignment to a vacant position,
  • adjusting or modifying examinations, training materials, or policies,
  • providing readers and interpreters, and
  • making the workplace readily accessible to and usable by people with disabilities.

An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship -- that is, that it would require significant difficulty or expense.

What Employment Practices are Covered?

The ADA makes it unlawful to discriminate in all employment

  • practices such as:
  • recruitment
  • firing
  • hiring
  • training
  • job assignments
  • promotions
  • pay
  • benefits
  • lay off
  • leave
  • all other employment related activities.

It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.

Can an Employer Require Medical Examinations or Ask Questions About a Disability?

If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.

An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer's business. Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential, and maintained in separate medical files.

Do Individuals Who Use Drugs Illegally Have Rights Under the ADA?

Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use.

What Do I Do If I Think That I'm Being Discriminated Against?

If you think you have been discriminated against in employment on the basis of disability after July 26, 1992, you should contact the U.S. Equal Employment Opportunity Commission. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys fees.

While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by State or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.

To contact the EEOC, look in your telephone directory under "U.S. Government." For information and instructions on reaching your local office, call:

  • (800) 669-4000 (Voice)
  • (800) 669-6820 (TDD)
  • (In the Washington, D.C. 202 Area Code, call 202-663-4900 (voice) or 202-663-4494 (TDD).)

Can I Get Additional ADA Information and Assistance?

The EEOC conducts an active technical assistance program to promote voluntary compliance with the ADA. This program is designed to help people with disabilities understand their rights and to help employers understand their responsibilities under the law.

In January 1992, EEOC published a Technical Assistance Manual, providing practical application of legal requirements to specific employment activities, with a directory of resources to aid compliance. EEOC publishes other educational materials, provides training on the law for people with disabilities and for employers, and participates in meetings and training programs of other organizations. EEOC staff also will respond to individual requests for information and assistance. The Commission's technical assistance program is separate and distinct from its enforcement responsibilities. Employers who seek information or assistance from the Commission will not be subject to any enforcement action because of such inquiries.

The Commission also recognizes that differences and disputes about ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts of employers and individuals with disabilities to settle such differences through alternative methods of dispute resolution, providing that such efforts do not deprive any individual of legal rights provided by the statute.

More Questions and Answers About the ADA

Q. Is an employer required to provide reasonable accommodation when I apply for a job?

A. Yes. Applicants, as well as employees, are entitled to reasonable accommodation. For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hearing impaired, unless to do so would impose an undue hardship.

Q. Should I tell my employer that I have a disability?

A. If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed. Employers are required to provide reasonable accommodation only for the physical or mental limitations of a qualified individual with a disability of which they are aware. Generally, it is the responsibility of the employee to inform the employer that an accommodation is needed.

Q. Do I have to pay for a needed reasonable accommodation?

A. No. The ADA requires that the employer provide the accommodation unless to do so would impose an undue hardship on the operation of the employer's business. If the cost of providing the needed accommodation would be an undue hardship, the employee must be given the choice of providing the accommodation or paying for the portion of the accommodation that causes the undue hardship.

Q. Can an employer lower my salary or pay me less than other employees doing the same job because I need a reasonable accommodation?

A. No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions.

Q. Does an employer have to make non-work areas used by employees, such as cafeterias, lounges, or employer-provided transportation accessible to people with disabilities?

A. Yes. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer. If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.

Q. If an employer has several qualified applicants for a job, is the employer required to select a qualified applicant with a disability over other applicants without a disability?

A. No. The ADA does not require that an employer hire an applicant with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.

Q. Can an employer refuse to hire me because he believes that it would be unsafe, because of my disability, for me to work with certain machinery required to perform the essential functions of the job?

A. The ADA permits an employer to refuse to hire an individual if she poses a direct threat to the health or safety of herself or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding an individual's present ability to perform essential functions of a job. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Q. Can an employer offer a health insurance policy that excludes coverage for pre-existing conditions?

A. Yes. The ADA does not affect pre-existing condition clauses contained in health insurance policies even though such clauses may adversely affect employees with disabilities more than other employees.

Q. If the health insurance offered by my employer does not cover all of the medical expenses related to my disability, does the company have to obtain additional coverage for me?

A. No. The ADA only requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees.

Q. I think I was discriminated against because my wife is disabled. Can I file a charge with the EEOC?

A. Yes. The ADA makes it unlawful to discriminate against an individual, whether disabled or not, because of a relationship or association with an individual with a known disability.

Q. Are people with AIDS covered by the ADA?

A. Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV disease from discrimination.

source: EEOC

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Disability Benefits Under CSRS and FERS

Introduction

CSRS and FERS both provide disability benefits. The benefits offered by the two plans are alike in some ways and different in others. Depending on your personal situation, the benefits offered by one plan or the other may be better for you.

Unless you have a serious chronic illness or a life-threatening medical condition, you will probably base your choice between CSRS and FERS more on what you want your retirement benefit to be than on the disability benefits offered. You should be aware of the differences between the plans, though, in case one or the other clearly meets your needs better. Note that, if you transfer to FERS, all of your disability benefits will be paid according to FERS rules.

This section explains the key features of the disability benefits given by both plans. It also points out some areas to think about in deciding which plan is better for you.

Eligibility

CSRS requires you to have at least 5 years of creditable civilian service before you can qualify for disability benefits. FERS requires 18 months of civilian service.

Those who apply for disability benefits under CSRS Offset or FERS must also apply for Social Security disability benefits or show that they are not eligible for them.

There are separate eligibility requirements that you must meet in order to qualify for Social Security disability benefit. You must meet Social Security eligibility requirements and have earned a specified number of Social Security credits before becoming disabled.

Definition of Disability

CSRS and FERS both use the same definition of disability. In order to be declared disabled under either plan, you must be unable to do your job, and must not turn down a suitable vacancy within your agency that is within your commuting area and at the same grade or pay level as your current position.

The definition used to determine your eligibility for Social Security disability payments is more strict than under CSRS and FERS. It requires you to be unable to perform any job, rather than just your current job. So even if you have the required number of Social Security credits, you may qualify for FERS or CSRS disability payments, but not qualify for Social Security disability payments.

How Much Disability Benefits Will Be

CSRS

Under CSRS, your disability benefit will generally be equal to your projected benefit at age 60 or 40 percent of your high-3 average salary, whichever is less. If you have more than 22 years of service when you become disabled, you will receive your accrued benefit, which will amount to more than 40% of pay. cost-of-living adjustments will be added annually at the full rate of inflation.

CSRS Offset

Under CSRS Offset, your basic annuity is computed under CSRS rules described in the preceding paragraph. In addition, if you qualify for Social Security benefits, OPM must reduce your annuity by the value of your Offset service in your Social Security disability benefit. The calculation is the same as was described earlier for a regular retirement.

FERS

FERS uses a different benefit formula that takes into account any Social Security disability benefits for which you may be eligible.

During your first year of disability, FERS will pay you 60% of your high-3 average salary minus 100% of an approximation of any Social Security benefit for which you qualify. No COLA's will be paid during this year.

(Note that Social Security disability payments and the reduction in your FERS benefit will not begin until 5 months after you qualify for Social Security disability. You will receive full FERS benefits during this period.)

During your second and any future years until age 62, your basic FERS benefit will amount to 40% of your high-3 salary. If you are entitled to Social Security disability benefits, your FERS annuity will be reduced by 60% of the approximate amount of your Social Security benefit. COLA's match the inflation rate if it is 2% or less. If the inflation rate is more than 3%, the COLA will be 1% less than the inflation rate.

The total FERS and Social Security benefit you receive will be equal to at least 40% of your high-3 salary plus 40% of your Social Security disability benefits. You may also get your Thrift Savings Plan account when you become disabled.

Your basic FERS disability benefit will be recomputed at age 62. At that time, you will receive your accrued FERS retirement benefit. In this case your accrued FERS benefit would be based on years of service that include the time you were receiving disability benefits. Also, the average salary used would be based on what you were earning at the time you became disabled, increased by all cost-of-living adjustments under FERS during that period.

CSRS and FERS

Under the Social Security law, your Social Security disability check must be reduced if the combined amount of your employees' compensation payment and/or public disability benefit is more than 80% of what is called your "average current earnings." Public disability benefits come from employment not subject to Social Security taxes, such as CSRS. Since FERS includes Social Security, this type of reduction is less likely under FERS.

Continuing Eligibility for Disability Payments

Under both CSRS and FERS, if you retire on disability and then decide to work again, your disability benefits may be affected. If your total income from work is more than 80% of the current salary of the position you retired from, your disability benefits will end. They may also end if you go back to work for the Federal Government.

Also, at times you may be required to prove that you still meet the CSRS and FERS definition of disability.

Conclusion

In general, the combined FERS and Social Security disability benefit (if you qualify for the Social Security benefit) will be larger than the CSRS benefit. However, it is more difficult to qualify for the Social Security disability benefit, and you must be covered for the number of years required by Social Security. Even if you do not qualify for Social Security, the FERS benefit is likely to be larger. Depending on your recent coverage under Social Security, you may have to work under FERS for 5 years before Social Security disability protection is available.

Also when your FERS benefits are recomputed at age 62, you may stand to lose a significant portion of your benefit. Remember when you transfer to FERS, you take your CSRS credit with you. If your combined CSRS and FERS benefits (under regular rules) are more than the benefit produced by the FERS disability rules, you will receive the combined benefit. This means that the possibility of becoming disabled may be less of a concern for CSRS employees with substantial CSRS service because of the larger accrued benefit that transfers to FERS based on that service. However, if disability benefits are a serious concern for you, you should ask your agency for estimates of benefits under both CSRS and FERS before you make a transfer decision.

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