Top Ten Considerations For Federal Employees With Disabilities Called Back to the Office – Go Health Pro

By: Jamie Strawbridge, Anisha Queen, Eve Hill

These are uncertain times for federal employees, many of whom have worked remotely since the outset of the COVID-19 pandemic in 2020 or before but now are being called back into the office. President Trump has instructed federal departments and agencies to “take all necessary steps to terminate remote work arrangements and require employees to return to work in-person at their respective duty stations on a full-time basis.” That January 20 order is now becoming a reality as many federal employees must return to their offices this month and next. 

The return to in-person work raises particular issues for federal employees with disabilities, many of whom may be entitled to telework as an accommodation under federal law. For many employees with disabilities, remote work is essential, either because in-person work poses health concerns, the office environment is not accessible, or some other reason. As federal government employees face return-to-work mandates over the next few months, here is a “Top Ten” list of things to remember when it comes to your rights:

1. Nothing in President Trump’s Executive Order changes federal law. Federal employees are protected against disability-based discrimination by Section 501 of the Rehabilitation Act, the requirements of which largely mirror the Americans with Disabilities Act. President Trump cannot take away these longstanding statutory protections. In fact, the Executive Order calling for a return to in-person work expressly recognizes that it must “be implemented consistent with applicable law,” including Section 501. Similarly, a January 27 memo from the U.S. Office of Management and Budget notes that employees that are “excused due to a disability” need not return to full-time in-person work.
2. Stay up to date on guidance from your department of agency. Employees in different parts of the federal government are experiencing different realities when it comes to return to work. The Trump Administration’s Executive Order calls for a return to in-person work but further states that department and agency heads “shall make exemptions they deem necessary,” and the January 27 OPM memo set a deadline of February 7 for agencies to “describe the agency’s process for determining exceptions based on disability.” Knowing the details will ensure you are informed about what requirements you face and what exceptions or other flexibilities exist.
3. If you have a disability, you are still entitled to a reasonable accommodation. One such accommodation may be the ability to work from home. Admittedly, not all jobs can be performed at home, and not all employees with disabilities want to work from home. But as the Equal Employment Opportunity Commission has explained, “allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”
4. Regardless of whether you have previously requested (or received) an accommodation, you are still entitled to ask your employer for an accommodation. In fact, you can request an accommodation at any point. But if you have a disability and believe a return to full-time in-person work would impact your health or ability to do your job, consider requesting an accommodation before you experience any adverse consequences.
5. Request an accommodation in writing. If you are going to request an accommodation, consider putting the request in writing (even though not required under Section 501) so there is a clear record of your request, which can be helpful later on if any dispute arises as to whether you requested an accommodation. Requesting an accommodation should trigger an “interactive process” with your employer, where you can discuss your disability and what accommodations you need. If not already known by your employer, you may need to include medical documentation to establish you have a disability.
6. If you worked remotely during the COVID-19 pandemic, that may help convince your employer that a work-from-home accommodation is reasonable. One question that often comes up in the “interactive process” between employees seeking a work-from-home accommodation and employers is whether you can do the “essential functions” of your job at home. If you have worked from home for the past five years, that may be powerful evidence that you can still do your job—and do it well—even if you’re not in the office.
7. If you think you may need to work from home, think through your disability and how it connects to the accommodation you need. With respect to remote work, for instance, neither Section 501 nor applicable regulations define when remote work should be permitted. But the reality is that, for many with disabilities, 100% in-person work is not feasible due to health concerns posed by in-office presence or inaccessible workplaces. An employer may not understand your needs, especially if your disability is not visible, so be prepared to explain what you need.
8. Consider creative solutions. If you have a disability and remote work is an important accommodation, you might request the ability to telework full time. On the other hand, if 100% work-from-home is not necessary, you might consider requesting the ability to work from home on an “as-needed” basis so you have the flexibility you need while still being present in the office some of the time.
9. If your request for an accommodation is denied, remember applicable deadlines. Once a request for accommodation is denied, you have 45 days to contact an Equal Employment Opportunity Counselor to start an informal counseling process. 29 C.F.R. § 1614.105(a). And remember, retaliation is still unlawful. If your employer disciplines or punishes or otherwise acts adverse to your interests because of your request for an accommodation or your attempt to assert your rights under federal law, that is still unlawful.
10. BGL is here to help. If you need advice about how to navigate the return to work over the coming months, BGL is here to inform you of your rights and guide you in negotiations with your employer over reasonable accommodation requests. You are not required to go through the “interactive process” on your own; if you would like legal counsel, please do not hesitate to contact us for a consultation.