Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
With the U.S. Patent and Trademark Office (PTO) coming under fire for the questionable practices of its patent examiners who worked from home, as detailed in an internal administrative inquiry report, I imagine agencies throughout the federal government may feel some pressure to keep teleworkers on shorter leashes. Agencies may even try to cut some of those leashes and cancel telework arrangements.
Agencies’ attempts to rescind or modify telework privileges are often received by federal employees as constituting direct personal affronts. A 2011 Merit Systems Protection Board (MSPB) study found that 87 percent of federal employees surveyed claimed telework had a positive impact on their ability to balance work and non-work life. Take away the telework privileges, and an employee’s life can be thrown into disorder.
Employment agreements that allow employees to work from home often include language stating telework is not an entitlement. Consequently, it is usually not very hard for agencies to change such arrangements, especially when there is evidence of time-and-attendance abuse or poor performance. However, taking away or denying telework arrangements can be much more complicated when the employee is teleworking because of a disability. That, however, does not mean such employees can expect to telecommute indefinitely.
In Carrie Graffius v. Department of Veterans Affairs (2007), for example, an MSPB judge affirmed the agency’s decision to remove a program specialist who suffered from a variety of medical conditions and had been allowed to telework for two years. The employee used a wheelchair and suffered from, among other things, diabetes and skeletal issues related to neuropathy. Although the agency initially allowed the appellant to telework, it later concluded it needed her to work in the office, which was 160 miles away from where she lived. The agency terminated her telecommuting arrangement, and she became absent without leave when she did not report to work, prompting her removal.
On top of finding the employee failed to establish she was a qualified individual with a disability under the Rehabilitation Act, the MSPB judge noted that “[t]here simply is nothing that requires an agency to award or continue undeserved accommodation because it had done so before under similar circumstances. That, I find, would create an entitlement to full time telecommuting where none exists.” On appeal, the Board affirmed the MSPB judge’s decision, and the Equal Employment Opportunity Commission (EEOC) also concurred with the MSPB’s final decision.
The Rehabilitation Act requires agencies to provide qualified individuals with a disability with a reasonable accommodation, so long as it does not impose on the agency an undue burden. When a disabled individual requests a telecommuting arrangement, a key issue is whether this type of accommodation would impose an undue hardship. The agency in Roger G. Young v. General Services Administration (2007), for example, denied a full-time telework reasonable accommodation request made by a program analyst with medical conditions. The agency claimed the employee’s “expertise and experience” made his presence in the office necessary for at least one day each week. An MSPB judge found the requested telework accommodation would pose an undue burden agency.
The agency in Graffius similarly justified its telework denial, claiming the employee’s job “required her to interact with coworkers and customers in person and to be present to learn programs and otherwise receive training.” However, the U.S. District Court for the District of Columbia did not find this explanation convincing and said it was a matter for a jury to decide. The court said the employee’s description of her job “together with her statements regarding the unchanged nature of her position from when she was first allowed to telecommute, and her high performance appraisal, cast doubt on the suggestion that the accommodation would impose undue hardship on the VA, or that even with such accommodations…[the employee]would be unable to perform all the essential functions of her job.”
Teleworking has many advantages. For disabled federal employees, it is more than just a convenience; it is a means to their livelihood. I hope the telework problems at PTO do not amount to a few bad apples ruining the whole bunch. In the least, the Rehabilitation Act would largely prevent such an outcome among disabled federal employees, who should immediately consult with an experienced federal employment law attorney if an agency refuses to accommodate them by allowing them to telework.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
