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Federal Legal Corner: Flexible Schedule as Reasonable Accommodation

September 24, 2014
Source: FedWeek

The U.S. Court of Appeals for the DC Circuit recently ruled that a flexible work hours schedule known as "maxiflex" can be a reasonable accommodation, holding that "nothing in the Rehabilitation Act says "as a matter of law, that a maxiflex work schedule is unreasonable." It reversed the dismissal of a lower court of the EEO complaint by Solomon against USDA for failing to accommodate her disability. Solomon v. Vilsack, Appeal No. 1:087-cv-01590 (August 15, 2014). This case began in early 2004 when Solomon, who had a history of depression, suffered a deterioration and was unable to maintain a normal work schedule. When she was ill in the morning, Solomon arrived late to work, or when she felt poorly in the afternoons, left early; yet Solomon would either arrive early the next day, or stay late, as the case may be, and diligently performed all of her work and met every deadline, often working on her own time to finish her assignments. Her supervisor nonetheless charged absent hours as "leave," even though the supervisor allowed at least one other employee in the branch to work a flexible schedule, including staying in the office into the evening alongside Solomon to finish his assignments. Solomon requested a reasonable accommodation of a flexible work schedule, in response to which the supervisor demanded medical documentation.

Solomon provided detailed statements from her doctor, but could not reach agreement with the agency as to the requested accommodation. Unable to resolve the issue informally, Solomon pursued the matter through the formal EEO process. Meanwhile, officials in human resources directed the new supervisor to forbid Solomon to stay late to finish work projects, even on her own time. Her mental health then worsened substantially, and she ultimately took disability retirement in early 2005.

The case was litigated up and down the federal courts for several years, and included other issues, but the key holding here is the appellate court embracing of flexible work hours as a "reasonable accommodation." The court ruled that "the appropriateness of flexible working hours as an accommodation in any given case will have to be established [through a fact-specific inquiry], [and] nothing in the Rehabilitation Act takes such a schedule off the table as a matter of law. Quite the opposite, the Rehabilitation Act, through its incorporation of the Americans with Disabilities Act standards . . . is explicit that a reasonable accommodation may include . . . modified work schedules."

For Solomon, this holding reversed the district court summary judgment dismissal of her case and will allow her to return to U.S. District Court to present most of her discrimination, retaliation, and failure to accommodate claims to a jury although the appeals court sustained the dismissal of two of the claims.

For federal employees seeking reasonable accommodations involving flexible work hours, the decision confirms that a flexible schedule is not per se unreasonable and that a court or fact-finder reviewing a failure to accommodate EEO claim may consider all the surrounding circumstances (e.g., recurrent deadlines; undue hardship on colleagues) in determining whether a flexible schedule is a reasonable accommodation.

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