Time and Attendance at the Intersection of Discrimination and Civil Service Law

What happens if a federal employee is removed for lateness and poor attendance, and argues in her defense that her time and attendance are linked to her disability and she needs accommodation in the form of flexibility?  The Merit Systems Protection Board and the Equal Employment Opportunity Commission arrive at different answers to that question, and that disagreement was on stark display recently in  the MSPB’s and EEOC’s opinions in a rare decision of the Special Panel. Alvara v. Department of Homeland Security, 121 M.S.P.R. 613 (2014) (Special Panel) (Alvara III).

In the federal system, the MSPB has been given the authority to decide questions of personnel law, while the EEOC has the same authority to decide questions of discrimination law.  The Special Panel was created by Congress to determine whether the particular question at issue in a mixed case involves personnel or discrimination law.  The Special Panel consists of a Member of the MSPB, a Commissioner of the EEOC, and a member from another agency.

Time and attendance is one of the issues where  “civil service and discrimination law converge but the interpretations of the MSPB and the EEOC do not,” former MSPB Vice Chairman Ann Wagner observed in her  dissent in Alvara.  Alvara III, 121 M.S.P.R. at 646.  In light of Alvara, however, that assessment no longer appears to be correct.

The Board had earlier upheld the removal of an employee from a Program Manager position on a charge of medical inability to perform, because her job required her to be in the office some portion of the time, which her medical condition precluded. Fox v. Department of the Army, 120 M.S.P.R. 529 (2014).  Defining “essential functions” for disability analysis as equivalent to “core functions”, the Board in Fox accepted that, personal[]interact[ion] with team members… physically providing hard copies and updates of materials for the binders … personal interaction with external customers… attend[ing] meetings with Congressional staffers and national meetings with representatives from other MSCs were essential functions”.  Fox v. Dep’t of Army, No. DC-0752-11-0872-I-1, 2014 WL 309642 (M.S.P.B. Jan.29, 2014).   The Board made no attempt to distinguish job function from method in determining whether working in the office and travel are  essential functions.

In Alvara, the Board similarly made no distinction when it affirmed Mr. Alvara’s removal for physical inability to perform.  Alvara v. Department of Homeland Sec., 116 M.S.P.R. 627 (2011) (Alvara I).   Mr. Alvara was a Customs and Border Protection Officer suffering from sleep apnea.  As an accommodation, he had earlier asked to be excused from working the graveyard shift, a request the Department of Homeland Security had honored for nearly two years.  But then, in 2009, it proposed him for removal, citing his inability to work during the graveyard shift.  The Board, following another earlier decision, Slater v. Department of Homeland Security, 108 M.S.P.R. 419 (2008), agreed that ability to work the graveyard shift was an essential function of Alvara’s position.  Alvara I at 630-31.

In mixed cases, an employee who has filed a mixed case appeal to the Board may ask the EEOC to review the Board’s decision on the discrimination claim.  Alvara did so, presenting the Board’s analysis to the EEOC.  The Commission in Alvara rejected “considering attendance as an essential job function as opposed to a method by which essential functions are accomplished.”  The Commission noted that, “[t]here is a strong temptation among agencies to frame attendance, or other measures of the time at which functions must be performed, as essential functions.” * * *, Petitioner,, EEOC DOC 0320110053, 2014 WL 3571431, at *4 (July 10, 2014) (Alvara II) (emphasis added).  Describing this as, “represent[ing] a flawed understanding of the requirements and structure of the Rehabilitation Act”  (id.), the Commission explained that making attendance an essential function of a position would lead to the absurd result that “any employee with disability-related absences is an unqualified individual and, therefore, unable to claim the protections of the Rehabilitation Act.”  Id. at *5 (extensive citations omitted).  Instead, the Commission distinguished job functions, “Duties that a person must perform or the outcomes that must be achieved by the person on the job,” from methods, “by which a person accomplishes the essential functions of a job.”  Id.  Time and attendance, it explained, are methods, “albeit important ones,” and, as such, subject to “the law’s obligation to provide a reasonable accommodation that does not impose an undue hardship.”  Id.  “[T]he proper way to determine whether an individual is qualified for a job is to ask whether that person can perform the essential functions of the job when at work.”  Id. at *4 (emphasis original).

Following the EEOC’s decision disagreeing with the Board’s interpretation of the Rehabilitation Act, the Board had the choice of accepting the Commission’s decision, or referring the issue to the Special Panel for resolution.  The sole function of the Special Panel in these circumstances is to determine whether the disagreement involves a question of personnel law or discrimination law.  In Alvara III, the Special Panel sided with the EEOC.

Former Vice Chairman Wagner, dissenting from the Special Panel’s decision, objected that the EEOC’S newly announced position, which the Special Panel allowed to stand, “effectively eviscerated the authority of federal agencies . . . to establish time and attendance requirements as essential terms and conditions of employment.” Alvara III, 121 M.S.P.R. at 645-46. Wagner also objected that the EEOC was “categorically excluding time and attendance from being considered essential functions”, which ran afoul of “the Board’s longstanding precedent governing its adjudication of adverse actions based on physical inability to perform.”  Id. at 636-37.   Wagner cited what she termed “the EEOC’s rather artificial line between essential activities to achieve outcomes and other terms and conditions of employment, such as time and attendance, that may be essential to the successful and efficient performance of those activities.”  Id. at 638.

Contrary to Wagner’s objections, however, the Commission’s analysis simply shifts the issue of time and attendance from an essential function analysis to an undue hardship analysis.  Under the Rehabilitation Act, whether an employee is a “qualified person with a disability”  – requiring an assessment of the essential functions of a position  and so entitled to an accommodation  – is followed by an analysis of whether a particular proposed accommodation would pose an “undue hardship” to the agency.   The Commission’s analysis in Alvara II allows DHS to argue that allowing one guard to be exempted from the graveyard shift would adversely affect the functioning of the agency to be a part of the undue hardship analysis:

This does not mean, however, that attendance and timing are irrelevant or unimportant to a Rehabilitation Act claim. To the contrary, as we have recognized in our past guidance, attendance and timing can be crucial factors in determining whether a request for accommodation imposes an undue hardship on the finances or operations of an agency: 

 Alvara II at *5 (citing, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice 915.002, Question 22 (Oct. 17, 2002) (“For certain positions, the time during which an essential function is performed may be critical”).  The Commission thus held that,

the proper way to determine whether an individual is qualified for a job is to ask whether that person can perform the essential functions of the job when at work. Once that determination is made, the analysis then moves to whether an accommodation (if needed) that would enable the person to perform those functions when at work (such as leave or a modified schedule) imposes an undue hardship on the finances or operation of the agency.

Id.  (extensive citations omitted).  Thus, the Commission rejected the argument that Mr. Alvara’s attendance was an  “essential function” analysis and concluded that it more properly  fell under an “undue hardship” analysis, which the agency is required to prove as a defense to a reasonable accommodation claim.  Id. at *6.

Shifting the question of attendance to undue hardship, which the agency must prove, does not seem so extreme as to, in former Vice Chairman Wagner’s words, “eviscerate the authority of federal agencies . . . to establish time and attendance requirements as essential terms and conditions of employment.” Alvara III at 645-46.   Indeed, such a shift would seem to bring into better alignment the analyses required under both the Rehabilitation Act and civil service law that an Agency may take an adverse action only for such cause as will promote efficiency of the service.  5 U.S.C. 7513(a).  The needs of the agency in both analyses are accorded a significant role in determining whether and how a qualified federal worker with a disability will be accommodated.

This blog was written by Mary Kuntz.