RA AND TCA

Unionist,

The Reentry MOU ends 09/30/2022 and employees will have questions regarding Reasonable Accommodation (RA) and Temporary Compassionate Assignment TCA.

See guidance below in order to answer questions from employees.

Good afternoon,

With the GC Re-Entry MOU expiring after 9/30/2022, there have been concerns regarding the status of temporary compassionate assignments (TCAs) and reasonable accommodations (RAs). This email will provide additional guidance on these matters, which DO NOT cease to exist after the MOU.

TCAs

The TCA language is found in Article 27, Section 10 of the contract:

Employees may request an assignment to another SSA facility in a different geographic location for up to 60 days based on a temporary personal situation (e.g., illness of a parent, etc.). The employee must submit a written request stating the nature of the personal situation, a prioritized list of office(s) for the assignment, and the anticipated length of the assignment. Assignment approval is at the discretion of management. The Agency will incur no costs from temporary compassionate assignments. An employee may request additional time under these same conditions.

The above language is broad, can apply to any kind of personal situation, and can be extended, theoretically without limit, every 60 days. The Re-Entry MOU sought to approximate the conditions of the WAHQ program the Agency used during the pandemic evacuation by providing clarity. The termination of the MOU does not mean that employees can no longer make requests for similar reasons. Further, the termination of the MOU does not mean that employees cannot request the ADS (or a substitute ADS under Article 41 Section 6.B, paragraph 2) for a TCA. The Agency admitted during re-entry bargaining that it had approved TCAs at ADSs, thus indicating that it already interpreted TCAs broadly and to include ADSs as “another SSA facility”, before the Agency agreed to the Re-Entry MOU. Thus, it doesn’t matter if the MOU terminates, because the Agency already interpreted the TCAs broadly, so they must continue to do so. If they fail to do so, or deny them for arbitrary reasons, employees should file grievances over the denials per Article 3, Section 2.A and Article 27, Section 10, in addition to any other applicable provisions you choose to cite.

Again, TCAs still exist, still can be requested for the same reasons as before (and then some), and can be grieved if denied.

RAs

Some managers have told employees that they cannot file RA requests for COVID reasons or that their RA requests will not be approved based on COVID reasons. That is false. Again, just because the MOU terminates does not mean that the law does not apply. The Agency must follow the law in deciding any RA request. Some tips/reminders, which is not an exhaustive list, but based upon common concerns we have seen from recent RA denials:

1. RAs must address medical requirements, not just comfort or choice. An employee must need an accommodation, based on medical evidence, for the Agency to be required to provide it under the law. Employees should work with their medical providers to obtain documentation to establish need.

2. Management cannot require employees to sign releases so that management can obtain medical information. Management can ask for additional information, but they cannot force employees to sign releases for management to obtain that information itself, to send interrogatories to medical sources, or any other similar methods to bypass the employee.

3. Management should be offering interim accommodations, especially if the RA process is taking a long time. If management doesn’t offer interim accommodations, that could be grounds for a complaint for failure to follow RA policy and law.

4. If management offers an alternative accommodation (rather than the one the employee requests), employees should not refuse the accommodation without first consulting their medical provider about whether the alternative accommodation would meet the employee’s medical needs. If the medical provider finds that the alternative would not, then obtain documentation of that finding and the reasons for it, and provide that to management with a demand for the requested accommodation or that management come up another alternative that would meet the employee’s medical needs. Continue this process until it is exhausted and some accommodation is reached, unless the Agency is being entirely unreasonable, in which case request EEO counseling for failure to accommodate.

5. Management must engage in an interactive process with the employee during the RA process. If management merely asks for documentation or goes through the motions, then it’s not interactive, and corrective action should be taken.

The GC is exploring all options with AFGE National Office, including a possible class action on the RA situation. It has been advised that employees file EEO counseling requests in response to RA denials and seek formal EEO complaints, rather than grievances, to ensure maximum possible coverage. The GC will be meeting again with National Office soon for further discussions. In the meantime, employees can keep filing their RA requests, regardless of the termination of the MOU. The law still applies.