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3 Days   $1,470
2 Days   $1,070
1 Day     $640


This course walks attendees through everything you need to know about disability law: who is covered by disability laws and the different types of claims that can be raised, how agencies should respond to requests for reasonable accommodations, with a discussion of ways to effectively accommodate mental disabilities in the workplace, and how to address performance and conduct issues where the employee has requested or has a reasonable accommodation. The course will also focus on the most often-requested accommodations, leave and telework, and what obligations agencies have and best practices for responding to those requests, when medical documentation is needed to respond to reasonable accommodation requests, fitness-for-duty examinations and direct threat analysis, and the importance of confidentiality of medical documentation.


Day 1 - Monday, April 20, 2020

  • Post-ADAAA: Who Is and Isn’t Covered Under the Amendments Act: The ADA Amendments Act of 2009 greatly expanded the definition of who is considered an individual with a disability. The week will kick-off with covering the revised regulations that define who is covered, as well as a discussion as to who is not covered by the Rehabilitation Act, as amended.
  • How to Conduct an Accurate Assessment of Essential Functions in Order to Respond to a Reasonable Accommodation Request: Employers run into issues when they only rely on the position description or a one-sided view of what the actual job duties of an employee entail. This segment will discuss best practices for determining, and documenting, what these essential functions are, as well as what would be considered marginal job functions, in order to respond to a request for accommodation.
  • When You Can (And When You Need To) Request Medical Documentation: Not every request for accommodation requires medical documentation in order to respond, and agencies often run into issues by focusing on getting just one more letter from a medical care provider, when the agency has what it needs to respond on file. This session will cover when, and when not, to request medical documentation and how best to limit requests to avoid liability.
  • Thinking Outside the Box: Creative Approaches to Responding to Reasonable Accommodation Requests: Employees are entitled to effective accommodations, not the accommodations of choice. Learn how to creatively approach requests for accommodations such that both sides achieve their goals, including some low-cost accommodations you may not have thought of.
  • Accommodating Hidden Versus Obvious Disabilities: Some disabilities are obvious and the accompanying accommodations will also be obvious (for example, an employee in a wheelchair who requires a ramp to obtain access to the workplace). These types of accommodations require less in terms of medical documentation and analysis and employers should ensure not to overstep in terms of requesting documentation. However, some disabilities are hidden, or not as obvious, and the accompanying accommodations may be less obvious. This session will discuss best approaches to responding to these types of need for accommodations.
  • Telework As A Reasonable Accommodation: Telework, whether full-time, part-time, or situational, continues to be requested with great frequency by employees with disabilities. Learn how to best respond to these requests, when telework can work as an accommodation, considering trial periods to gauge performance, and reframing how essential job functions can be performed virtually.

Day 2 - Tuesday, April 21, 2020

  • Reassignment: The Accommodation of Last Resort: Agencies must consider reassignment to another vacant, funded position if the employee cannot be accommodated in his or her position of record. Attendees will learn what obligations an agency has to search for other positions, how the applicable geographical area is defined, and how to document these attempts and communicate with the employee about these attempts.
  • When An Employee Cannot Be Accommodated: Sometimes employees cannot perform the essential functions of their positions, even with accommodation, and the agency must consider removal from the position where reassignment is not an option. This segment will cover best practices for agencies in taking such actions such that they can be defended if challenged by the employee, and how to approach these situations with appropriate compassion.
  • Managing Performance and Conduct Issues with Employees with Disabilities: Managers often struggle with how to appropriately address performance and/or conduct issues with employees who have requested reasonable accommodation, or may even require accommodation that they have not requested. This session will discuss how best to supervise these employees, while not giving rise to a claim of retaliation.
  • Appropriately Handling Employees Who Pose Direct Threats in the Workplace This session will cover how to lawfully address concerns that an employee poses direct threats in the workplace, including ensuring that any medical inquiries are job-related and consistent with business necessity.
  • Regarded As, Record Of, and Association With Individuals With Disabilities: These lesser-utilized case theories provide standing to employees who are regarded as disabled by their employer, regardless of whether they actually are, who have a record of a disability, or who face discrimination because of their association with an individual with a disability. This portion will cover these case theories and how they can be successfully asserted.
  • Latest Case Law on Disability Discrimination Cases: This segment will cover the latest decisions from the EEOC’s Office of Federal Operations and relevant Court of Appeals and District Court decisions that shape the developments in disability law.

Day 3 – Wednesday, April 22, 2020

  • When You Can Request Medical Information at Different Stages of Employment: The types of medical information an employer can lawfully request and receive differs depending on the stage of employment: application-stage, conditional offer of employment, post-employment. This session will explain these different stages and how agencies can avoid making unlawful medical inquiries.
  • Confidentiality of Medical Information: What You Can and Can’t Reveal: A common pitfall agencies run into is improperly disclosing, whether with mal intent or not, information about an employee’s medical condition. This segment will discuss who has a need to know information, and best practices for communicating limitations while not disclosing underlying medical conditions.
  • Best Practices for Storing Medical Information: This section will cover how medical documentation must be kept in a specific manner and failure to do so can lead to monetary remedies to the employee, regardless of whether he or she has a disability under the Rehabilitation Act.
  • Other Theories of Disability Discrimination: Harassment, Disparate Treatment, Disparate Impact, Retaliation for Requesting Reasonable Accommodation: Although claims of failure to provide reasonable accommodation are the most common type of disability claim, there are other theories on which discrimination can be asserted. This segment will discuss the burdens of proof for employees to raise claims of harassment, disparate treatment, disparate impact, as well as retaliation where the protected activity was requesting reasonable accommodation.
  • Remedies Available to Successful Complainants Under Disability Claims: This session will discuss the remedies available to complainants who prevail on claims of disability discrimination, key information for any practitioner who assists agencies in responding to claims, or defending against them, to know. Discussion of how best to differentiate between claims that an agency caused a medical condition, versus created an exacerbation of a medical condition, will be included.
  • How to Establish a Good Faith Defense to a Claim of Failure to Accommodate: Employers can avoid being liable for claims of compensatory damages even if the employee establishes that the agency did not provide an accommodation, if the employer can demonstrate that it attempted in good faith to provide an accommodation. This session will cover what is needed in order to properly document and establish such a defense, including an overview of the applicable case law.
  • Key Considerations in Preparing to Litigate and Litigation Claims of Disability Discrimination: This session will cover best practices in preparing to litigate and litigating claims that an agency failed to provide reasonable accommodation, including key information to request in discovery, including appropriate requests for medical records and claims for damages, how to conduct a deposition and question witnesses where disabilities are involved, and considering whether expert testimony is required.
*Each day includes a one-hour on-your-own lunch break.

Registration Rates

2 Days   $1,070
1 Day     $640


Day 1 - Monday, May 11, 2020

  • The Fundamentals of Charging Misconduct: This session will cover the basics of how to charge misconduct, including specific label charges, generic general charges, and narrative charges, as well as a discussion of when to use different types of charges to address different types of misconduct. This session will also include significant discussion on how incorrectly framing charges can lead to problems down the road. Attendees will learn the three key parts to a charge: label, elements, and specification and rules to live by when crafting charges. The session will include review of actual charges from MSPB cases and highlight what worked for the agency and what did not so that the attendee learns the pitfalls to improper charging and how to avoid these pitfalls, including when some or all of the charges cannot be proven, or when some specifications are not sustained.
  • Performance Actions: Chapter 43 versus Chapter 75, Performance Improvement Plans, Unsatisfactory Performance Actions: This session will cover all things concerning performance-based disciplinary actions, including how to differentiate and assist supervisors and managers with differentiating between performance and conduct concerns. Attendees will learn the statutory basics of and the similarities and differences between chapter 43 versus chapter 75 performance based removal actions, as well as the regulations that apply to SES-level employees, the procedural rights applicable to performance based removal actions, and how agencies must document performance in order to create a pathway to chapter 43 actions, including performance improvement plans. The session will also cover what the agency’s burden is to prove that removal was warranted for performance based reasons under both chapter 43 and chapter 75, including a discussion of OPM’s approval of performance appraisal systems relied upon by agencies. Attendees will discuss objective versus subjective standards of performance, as well as numerical standards or requirements for production. The session will also include a review of performance standards and how these are impacted where an employee has a disability or has requested accommodation during the process of being placed on a PIP or being proposed for removal.

Day 2 - Tuesday, May 12, 2020

  • Drafting the Proposal and the Decision Notices: Using Advanced Power Charging Techniques: This session continues the discussion from yesterday about the key points of properly charging misconduct and expands it to include best practices when drafting proposal letters and decision notices. The session will include how best to frame proposal letters so that the agency is not on the hook for providing anything beyond the charge itself, and how best to include information regarding applicable regulations, information about the proposed penalty, and evidence in support of the charge and specifications. The session will include examples taken directly from MSPB cases where agencies unnecessarily included information regarding the proposed charges which caused problems upholding the conduct, so that attendees can take away lessons and apply them in their own work. The session will include an overview of advanced power charging techniques including conjunctive charges, alternative charges, and how best to use narrative charges when appropriate. Attendees will learn the dangers of using generic, narrative charges in proposing disciplinary actions for misconduct, including the danger of charge re-characterization, as well as a discussion of merged charges. This session will include a review of charges that can be difficult to prove if not drafted and supported appropriate, including charges of threat, theft, and insubordination. Attendees will come away from this session with an advanced understanding of how best to frame and draft charges, as well as practical tips of how to format the proposal and decision letters issued to the employee.
  • Penalty Law and How to Sell the Penalty: This session will focus on how best to select and include the appropriate penalty, as well as discussion of the relevant case law, including when the MSPB will find it appropriate to uphold the charge but modify the penalty. The session will include discussion of what can go wrong when charges are mixed with penalties, as well as pitfalls extracted from real cases where agencies acted inappropriately with regard to the proposed penalty. Attendees will review the Douglas factors in detail and review case law which applies these factors to real-life cases. The session will also include discussion of the relevant case law surrounding consistency of the penalty with other discipline issued by agencies to other employees. Attendees will also review when and how agencies have to consider mitigating circumstances raised by the employee in response to the proposed discipline.
  • Affirmative Defenses & Harmful Procedural Error: Attendees will learn the three statutory affirmative defenses that employees can raise at the MSPB when challenging misconduct actions, including allegations of prohibited personnel practices and that the decision was made not in accordance with law. This session will also focus on how agencies can avoid harmful procedural errors, including claims that the agency violated an employee’s due process rights when a deciding official considers evidence not disclosed in the proposal notice or cases where an employee was not provided sufficient notice of the charges against them. Attendees will learn how to address cases where proposal actions may need to be withdrawn and reissued because of concerns surrounding due process, as well as the consequences of a due process violation being found by the MSPB. The session will include discussions of commonly raised affirmative defenses, including claims that an employee was being discriminated against with regard to their race or disability when disciplined. The session will also discuss claims of reprisal for protected whistleblowing activity, or other protected activity including the filing of EEO complaints.
  • The Oral and/or Written Reply; Preparing the Case File For a Potential MSPB Appeal: The session concludes with a review of the practicalities of how an agency must consider any oral or written replies provided by an employee, including who should attend, how oral replies should be memorialized, best practices for deciding officials on considering these replies and rendering a decision, and documentation that should (or should not) be relied upon and drafted by deciding officials in reaching a decision. The session will include a review of how case files should be prepared and kept if an employee challenges the misconduct action at the MSPB.
*Each day includes a one-hour on-your-own lunch break.

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