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Reasonable accommodation requires good faith negotiation

Disability can mean a great many things. When most people refer to someone as "disabled," they often are using it in a vague fashion, meaning the individual may be unable to perform some particular task.

While an individual who has lost their ability to walk or stand may not be capable of working as Border Patrol agent for the Department of Homeland Security, if they had training as an accountant or lawyer, they could easily be employed by the Internal Revenue Service, in a more sedentary position.

The Merit Systems Protection Board (MSPB) has recently discussed the topic of reasonable accommodation, and of the necessity of both the employee and the agency maintaining good faith when negotiating.

The failure by the agency to propose reasonable accommodation in good faith can lead to allegations of discrimination and lead to employees suing to obtain genuine reasonable accommodation or to contest a termination.

In one case, the MSPB described a situation where the agency refused to offer the employee a position, where it had an existing vacancy, after it had "imposed strict physical and mental requirements" which the employee could not meet.

She was indefinitely suspended for failing to meet these requirements. The MSPB reversed the agency's decision for failure to negotiate in good faith, and they contrasted this case with others, where the employee, when offered alternative positions that provided reasonable accommodation, the employee refused to accept the offers.

In those cases, the agency's decision was upheld by the MSPB. The Board reminded all parties involved in discussions of reasonable accommodation that they must engage in an interactive process to arrive at a solution.

Fedweek.com, "MSPB Explains Reasonable Accommodation Standards," October 23, 2014

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