Presentation on theme: "Office of Resolution Management"— Presentation transcript:
1Office of Resolution Management Why Is EEO Calling Me? Understanding How Some OWCP –Related Issues End Up in EEOTabetha McFeders, Office of Resolution Management
2ObjectivesIdentify 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.
4Identify 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?
5Federal 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.
6Reasonable Accommodation Americans with Disabilities Act Amendments Act (ADAAA)/Rehabilitation ActReasonable AccommodationADAAA 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.
7Identify 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.
8Identify 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.
9Identify 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 are covered 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.
10Do 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.
11Consequences…..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.
12QuestionI 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?
13AnswerOnce 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.
14QuestionSo, if collateral attacks are not permitted, why is an EEO counselor calling me?
15AnswerThe answer lies (partly) in the structure of the EEO complaint process.
16How Does the EEO Complaint Process Work? Informal StageTraditional EEO CounselingADRFormal Stage
17Why an EEO Counselor May Contact You… The informal process has no mechanism to deny EEO counseling to an individual regardless of the issueCounselor’s responsibility is to educate on the appropriate forum of a complaint
18What 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).
19What 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.
20What 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.
21What Happens When a Formal Complaint is Filed? Complaint is reviewed to determine if it is acceptable for investigationOWCP-related claims will be analyzed based on EEO and other relevant case-law
22What Matters Fall Under EEOC’s Jurisdiction The Equal Employment Opportunity Commission (EEOC) regulation 29 CFR allows for the dismissal of claims that:Fails to state a claimFails to meet time limitsIs the basis of a pending civil actionWhere the complaint has raised the matter in a grievance procedure or MSPBIs mootWhere complainant cannot be locatedWhere the complainant fails to respond to a request for additional informationAlleges dissatisfaction with the processing of a previous claimAbuse of complaint process
23What “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.
24Do OWCP-related claims state a claim? QuestionDo OWCP-related claims state a claim?
26EEOC Decisions Preventing Collateral Attacks Story V. U.S.P.S. (EEOC No )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 )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 )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.
27QuestionIf there is EEOC case law preventing collateral attacks on the OWCP process, then why are some complaints accepted?
28AnswerOther EEOC decisions have found that some OWCP-related complaints state a claim.
29Case 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 basisVilla v. Treasury (EEOC No )An allegation that a supervisor used the worker’s compensation process in a discriminatory manner compared to other employeesGlover 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 processMuhammad v. U.S.P.S. (EEOC No. 01A03678)An allegation that the agency failed to provide necessary information to OWCP to process a claim.
30Why the Confusion? Harris v. VA (EEOC No. 0120064696) 2 allegationsA. 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 )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.
31So If the Complaint States a Claim, What Can You Expect When A Claim is Accepted? Investigative StageInvestigator will take testimony or ask you to submit a written affidavit regarding the issue.Given under oathYou may be asked to provide documentationMedical records
32QuestionDo you have to provide files of injured employees when requested by an EEO investigator?
33How 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-8109-2. Inspection and Protection of Records
34Access 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.
35What Happens After Investigation? Hearing StageConducted by EEOC Administrative JudgeSworn testimony is provided
36Who 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 EEOCComplainants have the right to file in U.S. District Court.
37You may be contacted by an EEO counselor about one of your OWCP cases. Bottom LineYou may be contacted by an EEO counselor about one of your OWCP cases.View this as an opportunity for resolutionWhile 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.
38ResourcesEEOC policy guidance on ADA and Reasonable Accommodation Information specific to the ADA Amendments Act EEOC Enforcement Guidance: Workers’ Compensation and the ADA VA Directive and Handbook : Processing Requests for Reasonable Accommodation Job Accommodation Network Computer/Electronics Accommodations Program