Denial of Medical Clearance

In its recent decision in Katz v. Department of State, Appeal Nos. 0720060024 and 0720060025 (3/26/09), the Equal Employment Opportunity Commission issued a number of important holdings concerning disability discrimination. In this case, the State Department denied Dara Katz the medical clearance she needed to qualify for an overseas assignment with the Foreign Service, and then denied her request for a waiver of the clearance. The agency contended that because of Ms. Katz's special medical condition, she was particularly vulnerable to dehydration, bladder perforation and other medical problems. Ms. Katz's doctors supplied evidence that her condition would not require any treatment that Ms. Katz herself could not administer with ease.

In its decision, the Commission first found that waste elimination qualifies as a major life activity for purposes of the Rehabilitation Act. Additionally, it found that Ms. Katz was substantially limited in her ability to eliminate waste and that she therefore fit the definition of an individual with a disability under the Rehabilitation Act. The agency then contended that Ms. Katz was unable to perform an essential function of the position she sought because she was not "worldwide available," and that she carried the burden of showing otherwise. The Commission found, however, that it would place too great a burden on Ms. Katz by requiring her to prove that she was worldwide available in order to qualify for her assignment. Instead, the Commission held that the agency had the burden of showing that placing Ms. Katz in the position she sought would create a significant risk of substantial harm.

The Commission found that the agency had failed to conduct the individualized assessment of Ms. Katz's medical condition required to show a significant risk of substantial harm as a result of Ms. Katz's disability. It noted that the agency staff responsible for granting a medical clearance came to its decision without essential knowledge of Ms. Katz's condition or her anatomy. The staff denied Ms. Katz's clearance on the basis of its assumptions regarding her condition, without ever contacting her doctors to confirm or deny these assumptions. Two of the reviewing doctors did not even read letters from Ms. Katz's doctors affirming that she would not require any special medical care for the next two years.

The Commission criticized the agency for failing to gather information and base its decision on Ms. Katz's individual work and medical history. In this case, Ms. Katz had worked in Kosovo where she was sometimes confined to her home because of violence, and where public restrooms were often filthy or backed up. Despite these conditions, Ms. Katz worked successfully overseas. Ms. Katz had also travelled in Asia and Africa during the hottest months of the year without any adverse effects from dehydration. The Commission found that the agency had similarly failed to show a substantial risk of harm resulting from Ms. Katz's condition with regard to the other conditions the agency had cited as potential problems. The Commission noted further that even if there had been a significant risk of substantial harm, the agency had an obligation to determine whether providing a reasonable accommodation would eliminate or acceptably reduce the risk, which it had also failed to do.

In the event that an applicant for a medical clearance is unable to obtain a clearance, he or she may apply for a waiver of the clearance. Ms. Katz applied for such a waiver when her medical clearance was denied. The Commission found that the agency's failure to inquire into Ms. Katz's medical situation when considering her request for a waiver rendered it liable for discrimination on the basis of disability.

To remedy this discrimination, the Commission ordered the agency to conduct an individualized assessment of Ms. Katz's current medical condition. Absent any deterioration, the Commission ordered the agency to issue Ms. Katz a medical clearance and to determine whether any accommodations were necessary to enable her to perform her duties in the new position. As an additional remedy, the Commission ordered back pay to Ms. Katz accruing from the date her application was denied until the date she entered duty.

This decision has special significance for several reasons. This case represents the first time the Commission has explicitly held that eliminating waste is a substantial life activity that can support a finding of disability. The case also stands for the proposition that when the agency medical officer's opinion alone prevents an applicant from assuming a position, it is the agency that has the burden of showing a significant risk of substantial harm. In finding a significant risk of substantial harm, the Commission has also made it clear that the agency must investigate and pay close attention to the individual's particular medical condition and history. Finally, the Commission holds that back pay is available as a remedy for individuals improperly denied appointments under the Rehabilitation Act.

* 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 https://www.passmanandkaplan.com/ .

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