Accommodations for injured feds are limited

A recent decision by the U.S. Court of Appeals for the 8th Circuit shows that federal employees who were hurt on the job and return to work sometimes have to settle for a job that may not be to their liking.

The case involved Marjorie Meester, a long-term employee of the U.S. Postal Service who developed work-related chronic tendinitis. This condition developed into carpal tunnel syndrome and required surgery.

Meester filed workers' compensation claims for these injuries under the Federal Employees' Compensation Act.

FECA requires agencies to allow injured employees to return to their old positions after they recover. If they can no longer perform their original duties, employers are required to offer them reasonable alternative positions.

Because Meester wound up with a permanent impairment affecting 25 percent of her upper extremities, she could not perform her old job. USPS offered to create several limited-duty positions for Meester, but she rejected them because she said they were beyond her limitations.

Meester's doctor informed USPS that it would be "helpful" if Meester could have two consecutive days off per week. When USPS balked at the request, the doctor approved one of the agency's proposed positions that provided two non-consecutive days off per week.

According to USPS, it could not give Meester two consecutive days off because Mondays and Saturdays are USPS' busiest days. Of the more than 70 employees working at Meester's post office, only five routinely had Saturday and Sunday off.

After reviewing the proposed position, Meester's medical records and her doctor's recommendations, the Labor Department concluded that the proposed position was fully consistent with Meester's physical limitations.

Meester had to accept the position or lose her FECA benefits. She returned to work but continued to complain that she had not been properly accommodated.

She filed suit, claiming that USPS had violated the Rehabilitation Act by treating her unfavorably because of her disability, failing to adequately accommodate her disability, and harassing and retaliating against her.

USPS moved for a summary judgment, which the district court granted on the accommodation claim. The court said that because Meester received her position because of a FECA claim, she only could seek relief under the provisions of FECA. The Rehabilitation Act had nothing to do with her situation.

The disparate treatment and retaliation claims proceeded to trial. The court ruled against Meester on the retaliation claim, and a jury returned a verdict for USPS on the disparate treatment claim. Meester then went to the appeals court.

She did not fare very well there either. The appeals court agreed with the district court that Meester's "failure to accommodate" claim was barred by FECA (U.S. Court of Appeals for the 8th Circuit; Marjorie A. Meester v. U.S. Postal Service; 97-1580).

As for her other claims, the court noted that Labor is charged with determining whether an alternative position offered under FECA constitutes "suitable work." The department concluded that it did.

By challenging this decision, Meester essentially was asking the court to overrule Labor's decision, which the court said would contravene FECA's prohibition against judicial review of compensation decisions. If Meester's current position is not "suitable work," the court said her only remedy would be to file an appeal with Labor.

An agency should help an employee return to work, but no one says the employer has to bend over backward.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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