January 30, 2013
The EEOC's Office of Federal Operations (OFO) recently rejected the Social Security Administration's (SSA's) request for reconsideration of the EEOC's finding of discrimination based on failure to accommodate in the case Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (October 10, 2012).
Lamb was missing an upper limb and suffered carpal tunnel syndrome in the other arm and hand.She requested a modified work schedule to allow her to accumulate credit hours so that she could exercise in the morning to treat her depression, and then work a 10:00 a.m. to 6:30 p.m. schedule.The SSA initially denied the request on the grounds that agency policy forbade accumulation of credit hours after 6:00 p.m. and also that the schedule would create a "direct threat" to Lamb's health and safety.
The OFO's previous decision in the case held that the SSA's denial of the requested accommodation was discriminatory.The current decision upheld that decision by reiterating that "absent undue hardship, it is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability."Here, the agency policy at issue would otherwise forbid an employee from earning credit hours for work after 6:00 p.m.The OFO previously held that the SSA would not suffer any undue hardship from the requested accommodation and that the failure to accommodate Lamb was discriminatory. The OFO also previously addressed the SSA's arguments that the modified schedule would be a "direct threat" to Lamb's health and safety.
The OFO also used this appeal to reiterate its legal standard under 29 C.F.R. §1614.405(b) for evaluating a request for reconsideration, noting that it "is not a second form of appeal," and that the only bases for reconsideration are "a clearly erroneous interpretation of material fact or law; or "substantial impact on the policies, practices, or operations of the agency."As the prior decision had already addressed the issue of undue hardship, direct threat, and whether a policy could be modified as a reasonable accommodation, the OFO rejected the agency's reconsideration request.
* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.