Telework Not a Reasonable Accommodation

The EEOC recently held in Yeargins v. Department of Housing and Urban Development, EEOC DOC 0320100021 (May 14, 2010), that agencies need not provide telework as a reasonable accommodation to disabled employees if the employees are poor performers.

Kevin Yeargins received a kidney transplant in early 2005. Following a series of serious complications, Yeargins was hospitalized in January 2006 and diagnosed with Aspergillus and Cytomegavirus pneumonia and lung failure. The day after Yeargins' hospitalization, his wife contacted his supervisor to put the agency on notice that Yeargins could not come to work. A few days later, Yeargins' wife against contacted the agency and requested that it allow Yeargins to participate in the leave transfer program. Later that month, the agency contacted Yeargins to approve his request for advance sick leave and request medical documentation, which Yeargins provided within a few days.

Following his release from the hospital, Yeargins required supplemental oxygen for his recovery. Because his principal oxygen tank was heavy, Yeargins used mobile oxygen tanks when required to leave his house. His dependence on this mobile source of oxygen meant that Yeargins could not be away from home for more than three hours at a time.

After nearly five months absence, the agency directed Yeargins to report to work on May 22, 2006, or to provide medical documentation addressing his continued need to be absent from work. In early June, the agency warned Yeargins that the medical documentation he had submitted did not support his continued absence from work, and that he would soon be placed on AWOL status if he did not produce the proper medical documentation, or report to work by June 14, 2006. Yeargins did not report to work as directed, but requested that he be allowed to work from home five days per week. On July 11, 2006, the agency denied Yeargins' request to work from home, reasoning that Yeargins lacked the necessary knowledge to perform his duties successfully from home, and citing his previous performance level.

On September 8, 2006, the agency proposed Yeargins' removal. The agency charged Yeargins with failure to follow instructions, being on AWOL status since June 14, 2006, and failure to follow leave procedures. Despite Yeargins' reply, the agency issued a decision upholding his removal in January 2007. Yeargins appealed the agency's decision to the MSPB, alleging that his removal was based on discrimination. The Board found that Yeargins did not show that allowing him to work from home was a reasonable accommodation, and the agency's failure to do so was therefore not disability-based discrimination. The full Board denied Yeargins' request for review of the decision.

Yeargins petitioned the EEOC to review the Board's decision finding no discrimination. The Commission noted that at hearing, the agency had presented testimony that Yeargins' work performance indicated that he would not be able to work successfully without regular supervision. Yeargins did not argue that he performed at a higher level than the agency alleged. The Commission therefore found that allowing him to work from home without direct supervision would likely result in worse performance, and was therefore not a reasonable accommodation. The Commission also found no merit in Yeargins' claims of sex and reprisal discrimination as he failed to rebut the agency's evidence that it had fired him for failure to follow instructions, being placed on AWOL status, and failure to follow leave procedures.

* 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/.

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