Author Archive for Allison B. Eddy

Hope for movement to nominate board members to the Merit Systems Protection Board (MSPB)

On April 5, 2021, Rep. Gerry Connolly, D-Va. and Rep. Jody Hice, R-Ga., the Chairman and Ranking Member, respectively, of the House Committee on Oversight and Reform’s Subcommittee on Government Operations, wrote to President Biden requesting that he prioritize nominating members to the Merit Systems Protection Board (MSPB).  We have discussed the lack of quorum in other blog posts and have multiple clients who are sadly all-too-familiar with the lengthy delays the lack of quorum has caused in receiving resolution to their appeals.  Read the Letter Here.

The letter notes that the Board has been without a quorum since January 7, 2017, which has resulted in a “backlog of more than 3,000 petitions from federal employees requesting review of their allegations.”

The letter emphasizes the need for swift action in nominating Board members in order to prevent further and potentially more egregious impacts on the MSPB’s functioning, and to finally issue decisions for the thousands of impacted appellants who have been waiting years to receive decisions on their appeals.  We continue to have hope that the nominations for Board members will be coming soon.

American Rescue Plan Act of 2021 Provides up to 600 Hours Paid Emergency Leave

Included in the American Rescue Plan Act of 2021, signed by President Biden on March 11, 2021, were provisions allowing many federal employees access to up to 600 hours paid emergency leave for coronavirus-related reasons.  The emergency leave is similar to the former emergency paid sick leave provided under the Families First Coronavirus Response Act (FFCRA), but with some notable differences.

The first difference worth noting is the amount of paid leave allowed for qualifying federal employees. Prior to its expiration on December 31, 2020, the emergency paid sick leave provision in the FFCRA allowed many federal employees up to two weeks (80 hours) of paid leave for qualifying coronavirus-related circumstances.  While 80 hours of leave certainly can be helpful when treating, recovering from, or caring for an individual diagnosed with COVID-19, in more severe cases, it did not seem like a sufficient amount of leave was being afforded to federal employees who were suffering long-term consequences from the virus.  The emergency leave provision in the American Rescue Plan Act of 2021 allows up to 600 hours (or 15 40-hour weeks) of paid leave to many full-time federal employees for qualifying circumstances.

With the amount of potential leave increasing dramatically from the leave available under the FFCRA, one caveat employees may want to take into consideration, especially when using a substantial amount of the emergency leave, is that any emergency leave used by an employee will proportionally reduce the employee’s total service time used to calculate any federal civilian retirement benefit.  In other words, the emergency paid leave received by an employee under the act does not count as creditable service in calculating the employee’s service time for purposes of retirement benefits.

Many of the qualifying reasons for being permitted emergency paid leave under the American Rescue Plan Act of 2021 are similar – if not identical – to the qualifying reasons for previously being allowed emergency paid leave under the FFCRA.  For example, employees can qualify for the emergency paid leave if they:

  • Are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • Are caring for someone who is subject to a self-quarantine order or who was advised to self-quarantine;
  • Are experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
  • Are experiencing any other substantially similar condition.

The emergency paid leave available under the American Rescue Plan Act of 2021 is also available for qualifying federal employees whose work is affected by childcare issues due to the ongoing pandemic.  This provision is similar to what was available under the FFCRA, but the new act includes a discussion of virtual learning and hybrid learning approaches utilized by schools – methods of instruction that were likely too new and too mysterious to have been included in last year’s FFCRA.  Under the American Rescue Plan Act of 2021, emergency paid leave is available to eligible employees who are caring for a child whose school or place of care has been closed; if the school requires or makes optional a virtual learning instruction model or requires or makes optional a hybrid, in-person and virtual learning instruction model; or if the childcare provider is unavailable to due COVID-19 precautions.

A new but important consideration included in the emergency paid leave provisions of the American Rescue Plan Act of 2021 that was not explicitly laid out in the FFCRA is that emergency leave is also available for qualifying employees who are caring for a family member with a mental or physical disability or who is 55 years of age or older and incapable of self-care, without regard to whether another individual is available to care for the family member, if the family member’s place of care is closed or the direct care provider is unavailable due to COVID-19.

One notable addition to the list of qualifying reasons for being authorized emergency paid leave under the American Rescue Plan Act of 2021 is that employees can receive the emergency paid leave in order to obtain immunization related to COVID-19 or if the employee is recovering from an injury, disability, illness, or condition related to the immunization.

The emergency paid leave under the American Rescue Plan Act of 2021 is available from March 11, 2021 through September 30, 2021.

Actions Taken to Repair Federal Labor-Management Relations in President Biden’s First Week in Office

It has been less than a week since President Joe Biden took the oath of office on the steps of the U.S. Capitol, but the new administration has wasted no time in making efforts to repair damaged labor-management relations in the federal workforce.

On Day 1, President Biden issued an “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”  In addition to revoking former President Trump’s Executive Order 13950, the new Executive Order directs federal agencies to assess various existing policies and programs for potential “barriers” to underserved communities and individuals and to create plans for addressing and overcoming such barriers.

Also on Day 1, President Biden issued an “Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing.”  In an effort to crack down on community transmission of the COVID-19 virus, the new EO requires individuals in federal buildings and on federal property to wear masks, maintain physical distance, and adhere to CDC guidelines on the coronavirus pandemic. The EO also requires the heads of the Office of Management and Budget, the Office of Personnel Management, and the General Services Administration to “promptly issue guidance to assist heads of agencies with implementation” of the EO.

President Biden also made the first welcome change to the composition of the Federal Labor Relations Authority (FLRA), elevating Member Ernest DuBester to the position of FLRA Chairman.  It is expected that in the not-so-distant future, President Biden will also appoint a replacement to Member James Abbott, who is currently serving in a holdover status.

Then, on Friday, January 22, President Biden issued perhaps the most eagerly anticipated Executive Order among federal labor rights advocates.  In an “Executive Order on Protecting the Federal Workforce,” President Biden revoked former President Trump’s Schedule F Executive Order (EO 13957) and revoked Trump’s three civil service reform executive orders (EOs 13836, 13837, and 13839) that have been crippling the rights and abilities of federal Unions ever since they came into existence. For agencies that had already taken action to implement the now-revoked EOs, those agencies “shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions….”  President Biden’s EO also restored collective bargaining over permissive topics when contracts are up for negotiation.

Hopes and Expectations for the Biden Administration

It has been a rough four years for the rights of federal employees. From a gutted Merit Systems Protection Board (MSPB), to a Federal Labor Relations Authority (FLRA) that has seemingly gone rogue, to a series of Executive Orders signed by President Trump weakening employee and Union rights, some of us who practice in federal employment law have found ourselves scratching our heads and asking, “Could it get any worse?” more than once during recent years.

For someone who touted as a campaign selling point his lack of experience as a politician, President Trump has been remarkably effective at using the political system to hamper the rights of federal employees.  However, the outgoing head of the Executive Branch is soon to be replaced by a much more experienced politician who brings with him decades of knowledge in writing and negotiating law and policy. With this transition of power comes hope for change to level the playing field between employee rights and management discretion within the federal workforce. President-Elect Biden was a young Senator from Delaware when the Civil Service Reform Act of 1978 was passed.  He recognizes the vital role that our federal employees and Unions play in making our government work. And, hopefully, his administration will set into motion key actions early on in his presidency to override and overcome the actions taken by the Trump administration to diminish federal employee rights.

The following is not so much a wish list, but a listing of what we expect to see from the Biden administration in the coming months:

Staffing the Merit Systems Protection Board (MSPB)

Any discussion of expectations for the new administration has to include a discussion of the lengthy lack of quorum experienced by the Merit Systems Protection Board (MSPB). The MSPB was established by the Civil Service Reform Act of 1978, and has stood for decades as a guardian against unwarranted personnel actions suffered by federal employees. For the first time in its history, it has gone more than three years without a quorum under the Trump presidency, disabling it from being able to issue decisions on any appeal or enforcement action that comes before it.

The Board plays an important role in safeguarding federal merit systems. Generally speaking, non-probationary Appropriated Fund federal employees of most Executive Branch agencies are permitted to appeal major adverse employment actions taken against them, such as suspensions greater than 14 days, demotions, and removal actions, to the MSPB. After having their initial appeal heard and receiving an Initial Decision from an MSPB Administrative Judge, a party disagreeing with the Initial Decision is permitted to further appeal to the full Board, comprised of three Members nominated by the President and confirmed by the Senate. Even if the appellant ultimately prevails in her initial appeal, if the Agency refuses to comply with the Administrative Judge’s decision, the full Board ultimately has oversight to ensure and enforce an Agency’s required compliance measures.

With no Members to issue decisions, the MSPB was reported as having a backlog of 3,022 cases as of November 30, 2020. The lack of quorum has resulted in a tremendous backlog of cases and caused federal employees who have been subjected to unwarranted personnel actions to remain in limbo pending decisions on these appeals. We look forward to President-elect Biden nominating new Members to the Board, and the Senate confirming the nominations in the coming administration in order to get the very important functions of the Board back up and running.

Rescinding or Overriding Numerous Executive Orders (EOs) issued by President Trump

EOs 13836, 13837, and 13839: These three Executive Orders served to weaken organized labor and federal employees’ rights. Issued in 2018 and in effect since that time, the three EOs limit official time for Union stewards, compress collective bargaining timelines, and restrict individual agencies and their advisers in their ability to effectively negotiate and seek resolution to a variety of employment matters. For example, in 2020, OPM issued final rules implementing EO 13839’s provisions, urging agencies to limit notice of proposed adverse actions to 30 days and to issue decisions within 15 business days of the end of the reply period. By focusing on expediency in considering and taking major adverse employment actions against employees, management officials are more prone to rush to judgment on allegations and penalties proposed against federal employees, without being able to fully review and consider the applicable evidence and mitigating factors present in each individual situation. If an employee is then removed from their federal employment based on an improper or insufficient review of the evidence or mitigating factors, and the former employee then appeals the removal to the Merit Systems Protection Board (MSPB), the employing agency is likely to face greater scrutiny and be more vulnerable to reversal of the removal action by the MSPB. It is expected that the Biden administration will rescind these three EOs and work to restore labor-management relations.

EO 13957: This Executive Order created a new category of excepted service employees under a newly created “Schedule F.” The EO seeks to transfer many competitive service positions to the excepted service under the new Schedule, subverting the due process rights those employees would normally have in their competitive service employment. It is expected that the Biden administration will rescind the EO and not move forward with Schedule F conversions.

EO 13950: This Executive Order was issued by President Trump under the guise of “combat[ing] offensive and anti-American race and sex stereotyping and scapegoating” in diversity training. As many federal employees and federal employment practitioners are all-too aware, diversity training is necessary for a properly functioning federal workforce. The sad reality that President Trump refused to acknowledge is that double standards and disparities in treatment along the lines of race, gender, and other protected categories continue to exist in the federal workforce. It is expected that the Biden administration will work towards promotion and protection of diversity and inclusion among federal employees, including through the use of diversity training.

Making changes within the Federal Labor Relations Authority (FLRA)

The Federal Labor Relations Authority (FLRA) is currently comprised of two President Trump appointees, Chairperson Colleen Duffy Kiko and Member James Abbott, and one Member originally appointed by former President Obama. Chairperson Kiko and Member Abbott were initially sworn in at the end of 2017, with Member Abbott currently serving in a holdover status because he was appointed to serve the remainder of a 5-year term expiring July 1, 2020. After the appointment of Chairperson Kiko and Member Abbott, the FLRA has issued a series of decisions overturning decades of precedent and eroding the rights of Unions, over the scathing dissents of Member DuBester. The recent decisions issued by the FLRA are largely based not on the text of the Federal Service Labor-Management Relations Statute or on longstanding precedent, but rather on ideological interests in dismantling public sector bargaining. President-elect Biden will likely be able to change the composition of the FLRA by elevating Member DuBester to the role of Chairperson and replacing Member Abbott with a third Member who will recognize the importance of federal labor-management relations, the Statute overseeing such relations, and the decades of precedent protecting the balance of rights within such relations.

Lastly, the FLRA has been without a General Counsel for several years. By statute, the FLRA’s General Counsel has the sole authority to investigate Unfair Labor Practice (ULP) charges and issue complaints. Without a General Counsel, ULP proceedings have ground to a halt. It is expected that the new administration will appoint a new General Counsel and get ULP proceedings started again.

Waiting in Limbo Due to a Pending Security Clearance Adjudication?

When an employee’s security clearance eligibility comes into question, the length of time it takes to adjudicate that employee’s security clearance eligibility can feel painstakingly long. For civil service employees employed by the Department of Defense (DoD), adjudications of security clearances are performed by a central DoD Agency called the Department of Defense Consolidated Adjudication Facility (DoD CAF).

Even when an employing agency is the initial agency to suspend an employee’s access to classified information, the decision on whether or not that employee will be allowed to keep his or her security clearance eligibility is ultimately made by the DoD CAF.

It seems that the length of time for the DoD CAF to adjudicate security clearance eligibility can range from a couple of weeks to more than a year. In many adjudication proceedings, the employee’s security clearance eligibility first comes under review when the employing agency sends alleged “derogatory information” about the employee to the DoD CAF. When this happens, the employing agency will often also suspend the employee’s access to classified information while the DoD CAF adjudicates the employee’s security clearance eligibility. Depending on the type of job the employee performs and where he or she works, the suspension of an employee’s access to classified information can be devastating. If the employee works in a sensitive area or performs work requiring a security clearance, the employee may not be able to perform his or her regular duties while the employee’s clearance eligibility is being adjudicated. Some employees even find themselves in the financially compromising position of being indefinitely suspended from their jobs while their security clearance eligibility is being adjudicated. Because it is never known just how long the DoD CAF will take to adjudicate an employee’s security clearance, employees who are indefinitely suspended may be without work for months or even years.

Employees who are indefinitely suspended due to a security clearance adjudication can apply for and work other jobs while they are waiting on their security clearance decision. However, the chance of being selected for a job requiring a security clearance is very unlikely when the employee’s security clearance eligibility is still being adjudicated by the DoD CAF. Some employees who are indefinitely suspended pending their security clearance adjudication may be eligible for unemployment compensation.

A question we frequently receive from employees whose security clearances are being adjudicated is: “Can anything be done to speed up the process?”. The short answer to that question is: “Perhaps.” Federal employees have the ability to contact their Congressperson’s office to file a Congressional Inquiry on their behalf for various questions or concerns about their federal employment. For employees who are waiting to receive a determination on their security clearance eligibility from the DoD CAF, the filing of a Congressional Inquiry will elicit a response from the DoD CAF to the Congressperson’s office regarding the status of the employee’s security clearance adjudication. The Congressional Inquiry can also serve as a bit of a prompt or reminder to the DoD CAF that further action needs to be taken with regards to the employee’s security clearance adjudication.

Filing a Congressional Inquiry does not normally require representation from an attorney, although if you would like to consult with an attorney before filing your Congressional Inquiry, you are welcome to do so. Many members of Congress have websites that allow constituents to electronically request help dealing with federal agencies, such as the DoD CAF. Alternatively, federal employees can also request a Congressional Inquiry by calling their Congressperson’s servicing district office and speaking directly with a staff member of the Congressperson’s office.

If you are unsure of who your servicing Congressperson is, you typically need to look no further than the internet. The website for the U.S. House of Representatives has a “Find Your Representative” tool in which you can enter your zip code, and the name of your servicing Congressperson in the U.S. House or Representatives will be generated for you (

In general, filing a Congressional Inquiry can be a simple, cost-effective way of getting the DoD CAF to provide information regarding the status of your security clearance adjudication. While a Congressional Inquiry does not necessarily guarantee that your security clearance adjudication will be completed quickly, it at least provides a way of drawing attention to your pending issue and learning the current status of your adjudication. If you are a DoD employee who has been waiting several months or more for your security clearance eligibility to be adjudicated by the DoD CAF, you may want to consider contacting your Congressperson’s office to initiate a Congressional Inquiry on your behalf. If you would like to discuss your situation with an attorney at our office, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

Security Clearances in Federal Employment

Many federal government employees are required to hold or be eligible to hold security clearances due to the nature of their work.  In the federal government, security clearances add an additional layer of complication to workplace requirements, and when employees are faced with an allegation that may affect their continued ability to hold a security clearance, lots of questions and confusion are bound to arise.

For Department of Defense employees, the Department of Defense Consolidated Adjudication Facility (DoDCAF) is primarily responsible for issuing security clearances to employees.  In making security clearance determinations, the DoDCAF relies upon certain adjudicative guidelines pertaining to certain types of behavior that may give rise to a concern about a person’s ability to hold a security clearance.  The adjudicative guidelines include Personal Conduct, Financial Considerations, Alcohol Consumption, Drug Involvement, Criminal Conduct, and a number of other items.  If the DoDCAF determines that one or more adjudicative guidelines may be applicable to a certain employee or applicant, the DoDCAF will issue a “Letter of Intent” to revoke or deny the person’s security clearance eligibility.  Every Letter of Intent includes a “Statement of Reasons” specifying the adjudicative guidelines that are called into question and the facts giving rise to the Letter of Intent.  The employee is then given the opportunity to respond in writing to the Letter of Intent by explaining any and all mitigating conditions and providing relevant documentation to support a finding that any security concern has been sufficiently mitigated.

If the DoDCAF ultimately decides to revoke or deny a person’s security clearance eligibility, the person will typically be able to elect to proceed to a personal appearance before an Administrative Judge who works for the Defense Office of Hearings and Appeals (DOHA).  The assigned Administrative Judge will then conduct a hearing and render a recommendation to the DoD Personnel Security Appeals Board (PSAB), which will then make a final determination regarding the person’s eligibility to hold a security clearance.

It is important to take the security clearance process very seriously from start to finish, as an employee’s ability to hold a security clearance is often a condition of their employment.  If the DoDCAF issues a final decision ultimately revoking or denying an employee’s security clearance eligibility, such a decision can lead to adverse action procedures within that employee’s federal employment.

If you have been issued a Letter of Intent to revoke or deny your security clearance eligibility and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

The Golden Rule: “Obey Now, Grieve Later”

It can be difficult to follow an instruction from a supervisor that an employee strongly believes is incorrect, unwarranted, or not applicable to the duties of his or her assigned position. However, for federal government employees, it is usually best to follow the adage, “Obey now, grieve later.” If a federal government employee does not follow an instruction, direction, or order of a supervisor in his or her chain of command, that employee can be subjected to possible disciplinary action. Charges such as “insubordination,” “failure to follow a direct order,” and “failure to follow instructions” are common charges levied on federal government employees in disciplinary proceedings based on allegations that the employee refused to follow a supervisor’s instruction. Even if the basis for the supervisor’s instruction was completely meritless, an employee can still be subject to discipline for not following the supervisor’s instruction. See AFGE, Local 1367 and Lackland Air Force Base (Fed. Arb. 01/26/2011) (arbitration decision upholding a five-day suspension against an employee who did not follow his supervisor’s instructions due to his belief that the instructions were not in accordance with the collective bargaining agreement or past practices).

Even though employees should not typically refuse to obey instructions, an employee usually can express dissent, in a professional manner, with the instruction and not be subjected to discipline so long as the employee still obeys the instruction. For instance, if a supervisor assigns an employee a work task that would typically be handled by an employee at a higher grade level, the assigned employee may express to the supervisor her belief that the assigned work task is outside of her position description. As long as the employee does not refuse to perform the work task, she should not be disciplined simply for advising the supervisor of her belief.

An exception to the “obey now, grieve later” rule exists with regards to instructions that, if followed, could result in irreparable harm such as imminent physical danger. See Larson v. Dep’t of Army, 91 MSPR 511 (MSPB 2002). However, the vast majority of instructions issued by supervisors are not the kinds of instructions that would lead to irreparable harm. In those instances in which the employee does not have a reasonable safety concern, the “obey now, grieve later” doctrine will typically apply.

Following an instruction that seems wasteful, wrong, or outside the scope of the assigned employee’s duties can understandably be frustrating. However, if an employee follows the “Obey Now, Grieve Later” rule of thumb, the negative consequences are more likely to fall upon the employing Agency instead of the employee. For example, if a supervisor were to instruct an employee to work overtime without corresponding compensation, this can lead to a grievance to recoup the back pay the employee deserves for working the overtime. If an employee is instructed to use annual leave in order to meet with a Union steward when the employee should have been carried in an “official time” status for the meeting, a grievance can be filed to reimburse the employee for the annual leave used. Therefore, in nearly every circumstance, an employee is much better off following the “obey now, grieve later” rule than risking potential discipline for refusing to follow an instruction.

If you have an employment matter and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

MSPB Reverses Five-Year Enforced Leave Suspension

Although the Merit Systems Protection Board (MSPB or Board) is currently suffering from a lack of quorum and resulting inability to issue new decisions (Read the Press Release about the lack of quorum Here), the Board appears to have been very busy during the holiday season issuing decisions prior to the departure of MSPB Chairman Susan Tsui Grundmann.

In one Nonprecedential Final Order from the Board, issued December 20, 2016, the MSPB reversed the enforced leave suspension of a postal employee who had been placed in an enforced leave suspension status nearly five (5) years earlier. The Appellant, represented by Bonney, Allenberg, & O’Reilly, P.C. for the entire five (5) year process, had been placed on enforced leave and effectively prohibited from working starting at the beginning of 2012. The Agency’s argument for placing the employee on enforced leave was because the Agency believed the employee’s medical restrictions did not permit her to work any more than six (6) hours per day.

The employee filed an appeal to the MSPB Washington Regional Office in 2012 based on her placement on enforced leave, but the appeal was dismissed by an Administrative Judge for lack of jurisdiction. After further appeal (called a “Petition for Review”) to the full Board, the MSPB issued a decision remanding the appeal back to the Washington Regional Office and finding that the employee’s placement on enforced leave constituted a suspension status over which the MSPB had jurisdiction. Abbott v. U.S. Postal Service, 121 MSPR 294 (2014). This decision was discussed in a Prior Blog Post.

On remand, the Administrative Judge affirmed the Agency’s suspension action, and a second Petition for Review was filed with the MSPB. Finally, after nearly five (5) years of litigation, the Board agreed that the Agency’s placement of the employee on enforced leave was not supported by the evidence. While the Agency had argued that the employee’s medical restrictions did not permit her to work an 8-hour day, the Board pointed out that the Agency disregarded information from the employee’s doctor to the contrary. The MSPB therefore reversed the enforced leave suspension action “because the agency did not prove by preponderant evidence that the appellant could only work a 6-hour day.” Abbott v. U.S. Postal Service, DC-0752-12-0366-B-1 (Nonprecedential), at ¶19. Read the Full Final Order Here.

If you feel you have been subjected to an unwarranted personnel action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. 

Reasonable Accommodation in the Workplace

The phrase “reasonable accommodation” tends to be something many employees have heard before, but its meaning is not always clear.

Reasonable accommodation requests can arise in two different types of situations: (1) When an employee or job applicant suffers from a physical or mental disability and requires certain adjustments to the work environment to accommodate that disability; or (2) When an employee or job applicant’s sincerely-held religious beliefs and/or practice require an adjustment to certain working conditions in order to accommodate the individual’s religious beliefs and/or practice.

In disability cases, the employer is permitted to ask questions and seek supporting medical documentation to clarify the individual’s disabling medical condition and the requested reasonable accommodation. This is part of the interactive process, which an employer is required to partake in upon receiving a reasonable accommodation request. If the employee or applicant fails or refuses to provide the requested medical information, it is easier for the employer to deny the accommodation request without fear of negative repercussions. Therefore, if a certain type of accommodation is needed in order for the employee or applicant to be able to accomplish the essential functions of his or her job, it is very important to provide the employer with the medical information requested, so long as the medical information sought by the employer is reasonably connected to the particular disability and accommodation request in question.

Religious accommodation cases are slightly different, as the EEOC generally recommends that because the definition of religion is so broad, employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. EEOC Compliance Manual, Section 12: Religious Discrimination ( The interactive process in religious accommodation cases therefore tends to be less cumbersome than in disability accommodation cases. However, if the individual seeking the accommodation has behaved in a way that is markedly inconsistent with his or her professed religious belief, or if the particular accommodation sought appears to be beneficial to the individual for purely secular reasons, this might give rise to the employer questioning whether the individual really holds the professed sincerely-held religious belief and whether the requested religious accommodation is truly necessary.

Once the employee or applicant establishes that an accommodation is necessary for him or her to be able to carry out the essential functions of the position, the employer will typically only be allowed to completely deny providing reasonable accommodation where the reasonable accommodation will cause an undue burden to the employer. Assessing whether an accommodation is unduly burdensome typically becomes an economic question, and the EEOC will explore how costly the accommodation would be to the employer in reaching a conclusion as to whether or not the denied accommodation was unduly burdensome.

One area of contention in reasonable accommodation cases tends to be the type of accommodation ultimately granted to an employee or applicant. While qualified individuals have the right to request and secure reasonable accommodation so long as it is not an undue burden to the employer, oftentimes the reasonable accommodation granted to an employee is not necessarily the same accommodation that was requested by the employee. For instance, a disabled employee who seeks telework as a reasonable accommodation to accommodate a disability that affects his ability to drive might be alternatively granted an accommodation whereby the employer allows him a flexible starting and/or ending time for work that coincides with public transit or available carpool schedules. Similarly, if an employee whose position requires her to be on-call on weekends seeks a religious accommodation that permits her to have every Sunday off for religious service, but the religious service she attends is over by 1:00 p.m., she may be granted an accommodation whereby she is not on call for the specific period of time in which she attends religious services rather than for the entire day.

The EEOC’s website contains a significant amount of guidance regarding reasonable accommodations for disabilities and for religious reasons. For example, see EEOC Compliance Manual, Section 12: Religious Discrimination (, and the EEOC website’s overview of Disability Discrimination ( Additionally, the Job Accommodation Network (JAN) ( can be a terrific resource for employees with disabilities to explore and discover potential accommodations that may help them to be able to accomplish their essential job functions.

If you are seeking or have been denied a reasonable accommodation from the federal government and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

Proposed Disciplinary Action Proceedings in Federal Employment

 Sometimes, a federal government employee will find himself or herself in the unfortunate situation of receiving a proposed disciplinary action. For most tenured civil service employees, no discipline affecting the employee’s pay may be issued without first providing the employee with notice of a proposed disciplinary action and an opportunity to respond to the proposal.

The law firm of Bonney, Allenberg & O’Reilly regularly represents individuals in replying to proposed disciplinary actions. If you are issued a proposed disciplinary action and would like to consult with an attorney, you should schedule a legal consultation immediately, as most proposed disciplinary actions set out a very short reply period.

Most proposed disciplinary actions also provide information about who to contact to request an extension for purposes of replying to the proposal, and who to contact to request documentation relied upon in proposing disciplinary action. Employees faced with proposed disciplinary actions should always request all of the materials being relied upon in the disciplinary proceeding, although if you are represented by counsel, this is something to discuss with your attorney. In order to be able to fully reply to the proposal, you should have access to all of the information being used against you. While this may seem like common sense, all too often, employees do not exercise the full extent of their rights, and either do not reply at all to the proposal, or do not request to review the materials being relied upon for the proposed disciplinary action.

Just because a certain type of disciplinary action is proposed does not necessarily mean that particular disciplinary action will be imposed. The employee’s right to reply is a very important component of the disciplinary process in federal employment. It should be taken very seriously both by the employee replying to the proposed discipline and by the deciding official who will ultimately make a decision as to what, if any, disciplinary action will be imposed.

A decision on the proposed disciplinary action is typically issued in writing and mailed, e-mailed, or hand-delivered directly to the employee. If the decision being issued upholds the charge and imposes disciplinary action, the decision letter should provide notice to the employee of his or her appeal and/or grievance rights.

Every case is different, and for most people in their probationary periods, the employing Agency is not usually required to issue a proposal and offer the employee the opportunity to respond. Additionally, the Agency’s requirements tend to be different for Non-Appropriated Fund (NAF) employees, whose employment status does not normally entitle them to an appeal before the Merit Systems Protection Board (MSPB) in the event they are faced with a major adverse action.

If you have received a proposed disciplinary action and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.