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State workers fear loss of disability protection under Youngkin telework policy

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20220619_MET_TELEWORK

VDEM employee Lisa Nicholson works from her Richmond home. She has multi-organ sarcoidosis and narcolepsy with cataplexy.

Lisa Nicholson is doing the same job for state government that she has done since 2008, while working from home four to five days a week.

Nicholson, 53, is an information technology specialist who manages grant funding for local public safety communications agencies. She works from home because she has two well-documented medical conditions — multi-organ sarcoidosis and narcolepsy with cataplexy — that her doctors have confirmed are permanently disabling but don’t prevent her from doing her job remotely.

But now the South Richmond resident is fighting to maintain a workplace medical accommodation under the Americans with Disabilities Act so she can continue working from home at least four days a week under a new state teleworking policy. Gov. Glenn Youngkin is imposing the policy on all employees of executive branch state agencies, effective July 5, to return them to the office after working remotely for more than two years during the COVID-19 pandemic.

“Nothing changed,” she said of her medical status and job duties.

Nicholson’s predicament raises concerns about how Youngkin’s policy treats state employees with documented disabilities under the ADA, especially if they have proved they can perform essential functions of the job with some accommodations, such as working remotely.

The only thing that’s different in Nicholson’s job is that she was transferred with her entire division from the Virginia Information Technologies Agency to the Virginia Department of Emergency Management on July 1, 2020, under a state law adopted by the General Assembly that year. She has the same duties and supervisor, whom she said is fully aware of her medical disabilities.

Her new agency contends that Nicholson’s ADA accommodation, allowing her to work remotely and use special equipment, expired during the transfer and must be renewed — with medical documentation — before she can be approved for a new telework agreement.

Ultimately, her request to continue teleworking four to five days a week would be subject to approval by the governor’s chief of staff, Jeff Goettman, who would have to sign off on any request for an employee to work remotely more than two days a week.

“I think that’s ripe for challenge legally,” said Harris Butler, a Richmond lawyer with a 40-year career representing employees in employment disputes, in an interview about the governor’s telework policy.

Butler, who is not involved in Nicholson’s case, said an employer can periodically review an existing medical accommodation, but would run a legal risk by changing or canceling it.

“If the job functions do not change and if an employee has been successful in performing the functions of the job under accommodations, the employer has a very high burden,” he said.

Steven Traubert, director of litigation at the disAbility Law Center of Virginia, agreed that the legal standard is high for an employer that changes the rules for a disabled employee who has performed essential job functions with accommodations.

“You’re putting more of a burden on an employee just to do their job,” Traubert said.

The Youngkin administration says it is “wholly committed to abiding by ADA and providing necessary accommodations for our employees with disabilities,” said spokesperson Macaulay Porter, who said the new teleworking procedures “require a submitted request but in no way contradict ADA.”

In an email on Thursday, Porter said, “If previous ADA accommodations were granted, they will be honored.”

The Department of Emergency Management, also known as VDEM, declined to discuss Nicholson’s case, which it considers a confidential personnel matter.

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Many state employees have reacted with dismay to Youngkin’s telework policy, which the governor announced May 5, giving workers two weeks to submit requests to work remotely. State agency heads can approve no more than one day of telework a week under the policy. A Cabinet secretary would have to review requests for two days a week, while Goettman would have the final call for more than two days.

The Virginia Governmental Employees Association has asked the administration to delay implementation of the policy until Sept. 12, citing a survey of more than 400 employees noting concerns, including exposure to COVID, challenges with child care and accommodations for people with disabilities.

“The folks who have ADA issues are likely the most impassioned about the position they find themselves in,” said VGEA lobbyist Dylan Bishop.

Nicholson submitted her teleworking request by the May 20 deadline set by the governor’s office. Stephanie Asbell, the agency’s human resources director, informed Nicholson on May 26 that the department did not have a completed request for accommodations under the ADA.

Asbell said the Department of Human Resource Management, the central state personnel agency that had administered personnel policies for the Virginia Information Technologies Agency, or VITA, had informed Nicholson last October that her previous ADA accommodation had expired on June 30, 2020, when her division transferred to VDEM.

The HR director provided Nicholson with forms to request a new accommodation and certify her medical conditions. “Without these documents, we are unable to consider your request,” Asbell said.

Nicholson submitted a new request for medical accommodations on Wednesday, even though she considers the requirement to submit new medical documentation unlawful under the ADA.

She has already twice documented her medical conditions when she was at VITA, first in 2008 and then again in 2016, after then-Chief Information Officer Nelson Moe restricted the use of telework, with exceptions for people who lived more than 65 miles from their offices.

Dr. Shawn McLane, her pulmonologist who first diagnosed the sarcoidosis almost 14 years ago, on Tuesday certified her medical conditions and need for accommodations.

“The patient’s disabling conditions include an autoimmune condition with a broad spectrum of symptoms of varying severity that impact multiple organs and bodily function, to include chronic pain, cognitive impairments and disabling fatigue,” said McLane, who has practiced for 23 years at Pulmonary Associates of Richmond and Bon Secours St. Mary’s Hospital.

“The patient’s disabling conditions are lifelong, and only quality of life mitigating measures are available,” he said.

The doctor’s report details Nicholson’s initial diagnosis of pulmonary sarcoidosis in October 2008. Her condition affects both lungs and multiple organs.

Her secondary condition, narcolepsy with cataplexy, is a neurological sleep disorder with side effects that include the involuntary loss of control over limbs. It was diagnosed in 2010 as a secondary medical condition that “is also chronic, lifelong, and permanent,” the report states.

“Due to the patient’s chronic, lifelong conditions, and in consideration that she has a respiratory autoimmune condition that places her at the highest risk level for severe COVID-19 symptoms, hospitalization, and/or death, coupled with episodic immunosuppressant mitigation [though medications], it is being requested that the patient continue to work from the home office environment a minimum of four days a week to limit physical mobility, have consistent access to mitigating measures that afford the best quality of life for her primary condition, and that limits exposure to an ongoing deadly virus,” the report states.

The Department of Human Resource Management approved Nicholson’s previous medical accommodation in 2016 under a memorandum of agreement between VITA and the personnel agency’s shared services center, which provides personnel support to participating agencies.

Shared Services Manager Patricia Waller informed Nicholson in October, when the employee was seeking approval of a special mobile phone screen necessary to do her work, that the accommodation “was not intended to be a permanent accommodation” and had expired in mid-2020.

Nicholson said Curtis Brown, then director of VDEM, interceded to approve her request for the accommodation for special technology, and she assumed the matter was settled.

She contends that the previous accommodation remains valid because her medical history hasn’t changed and she is able to perform her job remotely. She works with seven regional VDEM employees whom she said work from their homes and 120 local public safety communications agencies.

“I could do that in the middle of the street with Wi-Fi,” she said.

Nicholson also said she is working under the same supervisor at VDEM as she did at VITA — Dorothy Spears-Dean, deputy state coordinator for the division that includes E-911 and geospatial services. She said Spears-Dean “knows about the disabling conditions.”

Scott Grimes, chief deputy commissioner of the Department for Aging and Rehabilitative Services, said a workplace accommodation complies with the ADA as long as it “enables the employee to perform the essential functions of the job,” but may not be “the exact accommodation that an employee wants or prefers.”

“Therefore, accommodations under the ADA, even for permanent disabilities, can be reviewed at any time, particularly when the employee moves to a new agency or a new manager,” Grimes said in an email statement.

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Nicholson said returning to regular hours in the office is neither necessary for her job nor safe for her health.

The dangers became apparent last month after she attended the E-911 Stakeholders Summit held at a hotel in Midlothian on May 11. Members of the state E-911 Services Board and related committees attended the annual meeting.

Five days later, Nicholson received an email from Asbell, the HR director at VDEM, notifying her that a person who had attended the summit had tested positive for COVID over the weekend. Capt. Thomas Bradshaw, a member of the E-911 board and communications director for Virginia State Police, received a similar notification the next day.

Two days after being notified of the positive case, Nicholson said she attended a statewide conference in Virginia Beach, where she said an associate told her that multiple people had tested positive for COVID after the summit.

She said she was alarmed because she had been using immunosuppressant medications at the time of the summit and three members of her family also have medical conditions that make them vulnerable to the coronavirus disease.

The Virginia Department of Health, which said it had not been notified of COVID cases related to the summit, later said it could not confirm an outbreak of the disease, which would entail at least three positive cases attributable to the event.

“We could not ascertain the connections between other cases and the event in question,” said Dr. Alexander Samuel, director of the Chesterfield Health District, which includes the hotel where the summit took place. “It’s possible individuals used home testing to determine their COVID status, which would be invisible to our [epidemiological] team.”

Chesterfield is also home to VDEM headquarters. Currently, the county has a high level of community spread of COVID, according to the federal Centers for Disease Control and Prevention.

VDEM spokesperson Lauren Opett had no comment on COVID cases potentially related to the summit, but said the agency regularly reviews guidance from the CDC, state health department, the Virginia Department of Labor and Industry, “and other sources for mitigating the risk of COVID-19 in the workplace.”

Terry Hall, director of the York-Poquoson-Williamsburg Regional 911 Emergency Communications Center, attended the summit as a member of the board’s funding and legislative committees. He said he is aware of two people who attended the summit and subsequently tested positive for COVID, but couldn’t say whether the cases were linked to the meeting.

“As we return to work and COVID is still out there, anywhere you go there’s an exposure,” Hall said.

Traubert, at the disAbility Law Center of Virginia, said the pandemic has changed traditional assumptions about the workplace.

“If we have learned anything from COVID, it’s that a lot of jobs can be done remotely that weren’t before,” he said.

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