Office of Resolution Management

1. Office of Resolution Management Why Is EEO Calling Me?Understanding How Some OWCP –Related Issues End Up in EEO Tabetha McFeders, Office of Resolution Management

2. Objectives Identify the right rules that apply for non-work related injury and illness. Understand obligation to reasonably accommodate injured employees. Identify what parts of the EEO complaint process worker’s compensation program managers and supervisors may be asked to participate in. Identify worker’s compensation issues that are always excluded from the EEO complaint process.

3. Occasional Overlap On-the-job injuries Reasonable accommodation

4. Identify the Right Rules Is the medical condition work-related or non-work-related? Is the medical condition minor and temporary? Does the employee meet the definition of disability under the Americans With Disabilities Amendments Act (ADAAA) due to the medical condition?

5. Federal Employees’ Compensation Act 5 U.S.C. 8101 et seq. FECA provides compensation benefits to civilian employee of the United States for disability due to personal injury or disease sustained while in the performance of duty. FECA is intended to be remedial in nature, and proceedings under it are non-adversarial.

6. Americans with Disabilities Act Amendments Act (ADAAA)/Rehabilitation Act Reasonable Accommodation • ADAAA requires an employer to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. • Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

7. Identify the Right Rules (for work related injury and illness) • Is the medical condition work-related or non work related? • Work-related injuries are covered by the Federal Employees Compensation Act (FECA) and the rules to follow are found in 20 CFR Part 10. • The Office of Workers Compensation Programs, U.S. Department of Labor, will make all decisions regarding claims of work-related medical conditions.

8. Identify the Right Rules (non work-related medical conditions) • Is the medical condition minor and transitory? • Individual agency policies, Federal regulations (5 CFR 630) and Bargaining Unit Agreements cover temporary, non-work-related medical conditions, where the employee wants to use accrued sick or annual leave. • Permanent non-work-related medical conditions, where the employee requires extensive time off from work to recover from a serious injury or illness for themselves or their family are covered by the Family and Medical Leave Act (FMLA). These rules are also found in 5 CFR 630.

9. Identify the Right Rules (non work-related medical condition) • Does the medical condition define the employee as a qualified handicapped employee under the ADAAA? • Non-work-related medical conditions, where the employee requires modification of their job to accommodate a significant disability arecovered by the ADAAA. In order to be entitled to coverage under this statute, the employee must suffer from a medical condition that substantially impairs a major life activity. Conditions that are both minor and transitory are not covered.

10. Do I Have to Accommodate an Employee Who Has an OWCP Claim? YES! Agencies still have an obligation to engage in the interactive process with an employee even if that employee is on OWCP or has a claim pending.

11. Consequences….. Granting benefits or accommodations to employees who do not qualify, results in reduced staffing efficiency; reduced morale in employees who must perform the work of the employee receiving unearned benefits; and may well cause discrimination complaints of disparate treatment by other employees who were not afforded similar benefits for similar reasons.

12. Question I thought employees could not use the EEO complaint process to launch an attack on the workers’ compensation process! Why am I being contacted by someone from the EEO office?

13. Answer • Once an employee engages the OWCP path, it should be followed to its conclusion. • Confusion occurs when employees use the EEO complaint process to question or attack what occurred during the OWCP process. • The complaint process does not allow for collateral attacks on the OWCP process.

14. Question So, if collateral attacks are not permitted, why is an EEO counselor calling me?

15. Answer The answer lies (partly) in the structure of the EEO complaint process.

16. How Does the EEO Complaint Process Work? • Informal Stage • Traditional EEO Counseling • ADR • Formal Stage

17. Why an EEO Counselor May Contact You… The informal process has no mechanismto deny EEO counseling to an individual regardless of the issue Counselor’s responsibility is to educate on the appropriate forum of a complaint

18. What To Expect During EEO Counseling Counselor determines the claims and bases from the aggrieved employee. You will be asked about your role in the issue/claim. Counselor tries to resolve the issue(s) by speaking with the aggrieved employee, and management officials. You may be asked to participate in alternative dispute resolution (ADR).

19. What is ADR? • Alternative dispute resolution is a valuable resource in managing conflict and resolving disputes. ADR processes, such as mediation, foster open communication and respect in the workplace. • Valuable to resolve any dispute NOT just EEO-related.

20. What Happens if the Issues Are Not Resolved During Counseling or Through ADR? The aggrieved employee is advised of his/her right to file a formal complaint.

21. What Happens When a Formal Complaint is Filed? Complaint is reviewed to determine if it is acceptable for investigation OWCP-related claims will be analyzed based on EEO and other relevant case-law

22. What Matters Fall Under EEOC’s Jurisdiction • The Equal Employment Opportunity Commission (EEOC) regulation 29 CFR 1614.107 allows for the dismissal of claims that: • Fails to state a claim • Fails to meet time limits • Is the basis of a pending civil action • Where the complaint has raised the matter in a grievance procedure or MSPB • Is moot • Where complainant cannot be located • Where the complainant fails to respond to a request for additional information • Alleges dissatisfaction with the processing of a previous claim • Abuse of complaint process

23. What “States a Claim”? Individuals may file a complaint of employment discrimination and retaliation prohibited by Title VII of the Civil Rights Act of 1964 (discrimination on the basis of race, color, religion, sex and national origin), the Age Discrimination in Employment Act (age), Rehabilitation Act, Americans with Disabilities Act and/or the Equal Pay Act.

24. Question Do OWCP-related claims state a claim?

25. Answer It depends!

26. EEOC Decisions Preventing Collateral Attacks • Story V. U.S.P.S. (EEOC No. 05960314) • Claimant may not use the EEO process to launch a collateral attack on the workers’ compensation process. It is within OWCP’s jurisdiction to determine whether a compensation claim has merit, and OWCP claims are not appealable to EEOC. • Hogan V. Army (EEOC No 01975337) • An agency has a right to represent its position and interest in the OWCP forum and EEOC will not review decisions which require judgment of the merits of the OWCP claim. • Andel v. U.S.P.S. (EEOC No. 01975337) • An agency has an obligation to controvert an employee’s workers’ compensation claim. Controversion of the claim does not affect a term, condition of employment. Andel alleged the agency provided false information to OWCP. EEOC ruled this was a collateral attack on the workers’ compensation claim processing.

27. Question If there is EEOC case law preventing collateral attacks on the OWCP process, then why are some complaints accepted?

28. Answer Other EEOC decisions have found that some OWCP-related complaints state a claim.

29. Case Law Where OWCP Complaints State a Claim • EEOC decisions where OWCP issues state an EEO claim: • Brizenzo v.VA (EEOC No. 01A14841) • An allegation that the agency willfully failed to provide information to OWCP on a discriminatory basis • Villa v. Treasury (EEOC No. 01994737) • An allegation that a supervisor used the worker’s compensation process in a discriminatory manner compared to other employees • Glover v. U.S.P.S. (EEOC No. 01A04428) • An allegation that the agency does not provide promotional opportunities to disabled individuals who are placed in permanent rehabilitation duty positions as the result of an on-the job-injury does not constitute a collateral attack on the OWCP process • Muhammad v. U.S.P.S. (EEOC No. 01A03678) • An allegation that the agency failed to provide necessary information to OWCP to process a claim.

30. Why the Confusion? • Harris v. VA (EEOC No. 0120064696) • 2 allegations • A. Agency officials notified OWCP that she violated her light duty restrictions. • B. No selection had been made for 2 positions for which she applied and were in her light duty restrictions. • EEOC upheld dismissal of allegation A. • EEOC reversed dismissal of allegation B finding that the allegation is that the agency failed to accommodate her. • Wright v. U.S.P.S. (EEOC No. 0120054949) • Allegation that agency failed to comply with OWCP decision and resulted in her having to use annual and sick leave. EEOC reversed agency dismissal and found it was a viable claim.

31. So If the Complaint States a Claim, What Can You Expect When A Claim is Accepted? • Investigative Stage • Investigator will take testimony or ask you to submit a written affidavit regarding the issue. • Given under oath • You may be asked to provide documentation • Medical records

32. Question Do you have to provide files of injured employees when requested by an EEO investigator?

33. How do you get the information that you need? Agencies may not use copies of information from claim files in connection with EEO complaints, disciplinary actions, or other administrative actions without the employee's consent. Any questions concerning use or release of records should be directed to the district office. Publication CA-810 9-2. Inspection and Protection of Records

34. Access to FECA Records • Who maintains control of FECA records? All records relating to claims for benefits filed under the FECA, including any copies of such records maintained by an employing agency, are covered by the government-wide Privacy Act system of records entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal Employees' Compensation Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/GOVT-1 are official records of OWCP.

35. What Happens After Investigation? • Hearing Stage • Conducted by EEOC Administrative Judge • Sworn testimony is provided

36. Who Makes the Final Decision on Whether Discrimination Occurred? • If a case goes to a hearing, the administrative judge issues a decision. • Agency has 30 days to either accept it or appeal it. • If a case does not go to a hearing, the agency issues a final decision. • Complainants are provided appeal rights to EEOC • Complainants have the right to file in U.S. District Court.

37. Bottom Line • You may be contacted by an EEO counselor about one of your OWCP cases. • View this as an opportunity for resolution • While most claims related to OWCP are dismissed, some may be accepted and you will be contacted by an investigator and may have to provide testimony in an EEOC hearing.

38. Resources EEOC policy guidance on ADA and Reasonable Accommodationwww.eeoc.gov/laws/guidance/subject.cfm#ada Information specific to the ADA Amendments Actwww.eeoc.gov/laws/statutes/adaaa_info.cfm EEOC Enforcement Guidance: Workers’ Compensation and the ADAwww.eeoc.gov/policy/docs/workcomp.html VA Directive and Handbook 5975.1: Processing Requests for Reasonable Accommodation www.diversity.va.gov/policy/dra.aspx Job Accommodation Network http://janweb.icdi.wvu.edu Computer/Electronics Accommodations Program http://www.cap.mil

39. Questions?