Legal Insider

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Governor Glenn Youngkin announced last week that his administration has opened an official email tip line for Virginians to submit “reports and observations” of “inherently divisive practices” in Virginia schools. On a radio show last Monday, he touted the new tip line and encouraged parents to send his administration “any instances where they feel their fundamental rights are being violated [or] where their children are not being respected.”

While it remains unclear exactly what might constitute such a “divisive practice” in the eyes of the new Governor, he has emphasized his broader goal to rid the school system of such teachings, including Critical Race Theory — despite CRT not actually being taught in K-12 schools in Virginia. This move comes after the Governor expressly banned CRT in Virginia public schools via his first executive order.

But all those political controversies aside, this new tip line presents a new and unnecessary worry for the dedicated teachers of our Commonwealth. For society generally, I think this tip line is a terrible idea. As an employment lawyer, however, I think it is even worse.

Educators across the Commonwealth may be obviously and justifiably upset at the idea of having someone report them. This worry is only magnified by the lack of clarity regarding this new tip line. For instance, there is no clear guidance about what counts as “divisive” — so teachers now have to worry about anything they teach, or even just the way they teach it, possibly being perceived as “divisive” by a disgruntled parent, student, community member, or random third party.

Although it is not clear what sort of investigative and/or enforcement actions the Governor envisions against teachers, the move comes just as our teachers face among the lowest salaries for their profession in the United States and just as the Commonwealth continues to face serious teacher shortages that have only been exacerbated by the ongoing COVID-19 pandemic. Being investigated by the government over such ambiguously defined concerns is the last thing our hardworking teachers need right now.

Many other questions about this tip line remain unanswered at this point, in addition to the vagueness of the “divisive practice” label. The Governor has not expressly stated that his goal is to investigate teachers, and his press secretary tweeted last Wednesday that the tip line is intended as a “resource for parents, teachers, and students to relay questions [and] concerns,” calling it a “customary constituent service to hear from Virginians.”

Asking people to report teachers over anything perceived as offensive or divisive is sure to result in overinclusion relative to anything that is truly a problem, and the breadth of this potential coverage is what is so problematic for the teachers faced with the Governor’s efforts. We have school boards and administrations for a reason — there is simply no need to create a culture of reporting schools and teachers to the state government rather than by solving problems within the school district.

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The Director of National Intelligence (DNI) recently issued new guidance for federal agencies and security clearance holders on marijuana and cannabidiol (CBD) usage, in addition to investments in marijuana businesses. The guidance clears some issues up, but also raises new questions about the use of CBD for security clearance holders.

The three areas covered in the DNI’s new guidance include:

• Usage of CBD products
• Use of marijuana
• Investments in marijuana

Use of CBD

The most important update provided involves the use of CBD products by security clearance holders and applicants. The new guidance discusses the fact that the Agriculture Improvement Act excluded hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% from the definition of marijuana within the Controlled Substances Act.

Further, the new guidance explains that hemp-derived products that contain greater than 0.3% THC continue to remain illegal and potentially a problem for clearance holders. The memorandum explains that CBD usage can be a problem because the Federal Drug Administration (FDA) does not certify levels of THC in individual CBD products and that some products may be labeled incorrectly.

The guidance suggests the CBD products that cause a clearance holder to test positive for marijuana use could cause a negative security clearance action. The guidance, however, doesn’t really explain how far security clearance adjudicators will consider regular CBD use that does not result in a positive drug test.

Use of Marijuana

The DNI essentially restates the current standard for prior marijuana use to determine whether such behavior raises a security concern and whether that concern has been mitigated. The guidance states that marijuana usage is a problem, but not necessarily determinative in the security clearance process. It appears that the DNI is trying to make it clear that some prior usage will not be an automatic disqualifier.

Security clearance holders should clearly refrain from any marijuana use in advance of seeking (or while holding) a cleared position. Also, the guidance states that an individual that indicates an intent to continue using illegal drugs in the future (e.g. marijuana) will be disqualified from holding a security clearance. The DNI stresses that such use should be balanced with the overall person’s history (the whole-person concept) when making a decision as to whether to grant or deny a security clearance.

Investments in Marijuana

The new DNI guidance is helpful in clarifying a confusing area for security clearance holders concerning involvement in marijuana businesses and/or investments. We have received many inquiries from clearance holders about where the line is drawn with respect to investing in marijuana investments. The guidance makes it clear that investments in marijuana are still cause for losing a security clearance until Congress changes the Controlled Substances Act, even where states have legalized marijuana.

Basically, the DNI draws the line at whether the individual knowingly is involved in a marijuana investment, business or stock. If the investment happens to be part of a diversified mutual fund, however, there is a presumption that there is no security clearance issue.

We believe, given the rapid changing nature of CBD and marijuana laws that this guidance will be updated again in the next few years.

Contact Us

If you are in need of advice or representation in security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Pursuant to the Biden Administration’s changes to personnel law for federal employees, the Office of Personnel Management (OPM) has just issued new proposed regulations to rescind many of the prior Administration’s federal employee rule changes. The changes by OPM were those put into motion earlier this year when the President revoked Executive Order 13839 by signing Executive Order 14003. The President, in Executive Order 14003 directed OPM to suspend, revise, or rescind actions implementing Executive Order 13839.

OPM’s new rules will affect federal employees in a few ways and will likely be fully implemented as soon as the short comment period is over. The changes will eliminate the clean record settlement ban, alter performance-based actions, revise probationary period notices, and change a few other personnel issues for federal employees. By far, the most important change is the ability for federal agencies to enter into clear record settlements with federal employees in cases.

Major Changes for Federal Employees

OPM’s proposed rules will rescind several parts of the former Administration changes to civil service rules, including the following:

• Clean Record Settlements: This is the change that everyone has been waiting for. The prior Administration banned federal agencies from resolving federal employment litigation involving clean record settlements, where a person would be able to obtain a fresh start as part of settlement. Both federal employees and agencies disliked the ban because it interfered with their ability to resolve cases. The proposed changes will eliminate this ban and allow federal agencies the discretion to resolve complaints and settle cases in a fair manner.
• Performance-Based Actions Against Federal Employees: The former Administration’s prior rule added language that basically left struggling employees without the ability to obtain assistance in successfully passing performance improvement plans. OPM’s change in the proposed rule would revert back to prior language that provided that as “the agency shall offer assistance to the employee in improving unacceptable performance” during the performance improvement plan process.
• Probationary Notices: Next, OPM’s former rules required federal agencies to notify supervisors at least 3 months before an employee’s probationary period ended (with an additional reminder 30 days before it ended). The rules also required supervisors to make an affirmative decision about whether the employee should stay on the job. The rule had the unintended effect of causing many unjustified terminations and confusion. OPM’s new rules will remove this requirement because it believes that the frequency and timing of notifications should be left up to the discretion of each agency.
• Disciplinary Penalty Determinations: The proposed rule removes many of the former Administration’s new criteria for disciplinary penalty evaluations, restating that a belief that the Douglas factors govern penalties for federal employees, leaving significant discretion to federal agencies.
• National Guard Technician Changes: The proposed rules also would implement new requirements for procedural and appeal rights for dual status National Guard technicians for certain types of adverse actions.

If you are in need of advice regarding noncompete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.

During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.

Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.

In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.

The MSPB Process is Much Like a Regular Court Case

One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs.

It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

There have been at least 10 states that have legalized marijuana over the past 5-10 years. The change in state laws has led to significant confusion by security clearance holders about their ability to use marijuana while holding or seeking a security clearance.

States like Massachusetts or California have legalized marijuana, but marijuana use remains illegal under federal criminal law as a Schedule I drug. The state and federal conflict in laws has caused both confusion and problems for security clearance applicants or holders.

Security Clearance Rules Governing Marijuana Usage

Security clearance holders and applicants frequently run into security clearance problems under Guideline H of the Security Clearance Guidelines (Security Executive Agent Directive 4) because they don’t realize that the use of marijuana, even in a state that has legalized it, remains illegal under federal law.

I believe that these guidelines will be amended in the next 5-7 years to change the use of marijuana from a complete ban to an abuse standard, like with alcohol, but the issue remains a problem today for those in the security clearance world.

Additionally, the type of marijuana which is used makes no difference (e.g. candy form, chocolate, brownie, smoking) under the guidelines. We have seen individuals that have had security clearance problems stemming from eating a single gummy candy which contained the active ingredients of marijuana.

We have defended many security clearance clients who have engaged in the light (or even one-time) usage of marijuana, who have had difficulties in overcoming the presumption that even minor use makes one ineligible to hold or maintain a security clearance. If the usage was a long time ago, this can significantly help mitigate a security concern, but the trickiest situations arise when marijuana usage has occurred within the past year.

The key in such cases is to attempt to mitigate security concerns by showing abstinence, changes in attitude, changes in associations with friends that engage in drug use and counseling, where needed.

Guideline H of the SEAD 4 states that:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Earlier this year, on July 17, the Arlington County Board approved the process for collective bargaining for a significant number of Arlington county employees.

Many Northern Virginia communities have begun the process of implementing collective bargaining following Virginia’s repeal of the ban on such agreements in 2020. In the ordinance, Arlington County authorized potential unions for Police employees, Fire and Emergency Services employees, Service Labor, Office and Technical employees and Professional Employees. A number of senior-level and other employees are not eligible to join a union.

Typically, in order to start the collective bargaining process, a government needs to appoint a manager or board to carry out the job of impartially carrying out the applicable labor law. According to the new ordinance, the job of running elections and certifying individual unions was given to a new Labor Relations Administrator whose job will involve many of the same types of duties held by the National Labor Relations Board for private companies. Employees covered will have many of the traditional rights given to other unionized workforces and have the ability to take disputes to binding arbitration.

Strikes remain barred under the new ordinance and can lead to termination of employment. In addition, traditional unfair labor practice charges, labeled in the ordinance as “prohibited practice charges,” would be available.

Some of the most important aspects of unionization for eligible employees generally include:

• A level playing field for union officials and management to discuss employment issues as equals without fear of retaliation
• The ability of unions to negotiate binding solutions with officially recognized unions
• Employee protections from interference by management in labor matters through the complaint process (similar to the unfair labor practice complaint process)
• Binding arbitration for violations of collective bargaining agreements and appeals of disciplinary actions by independent arbitrators not employed by the County

It appears as if a majority or two-thirds of county employees will be eligible to join a union. According to news accounts, and our experience in representing unions before other entities, it will likely take at least two years before any collective bargaining agreements are effective. From recent ad postings, it appears that the Arlington Labor Relations Administrator’s office is still in the process of hiring personnel for the upcoming collective bargaining process.

In addition, a petition has already been filed for recognition by the Arlington Firefighters & Paramedics Association. Other unions may have also filed such petitions but are unknown at this time. It will take time for the labor unions to become officially recognized and for collective bargaining agreements to be negotiated, but the process is fully underway and will lead to better employee rights for Arlington County employees.

If you are in need of advice regarding noncompete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Many employees that quit their positions do not give enough thought to leaving a job successfully. Even though an individual is leaving for a new job, it is critical to leave on good terms.

A departing employee never knows whether or not they will later need a reference from a past employer or be subject to a background investigation where past supervisors are interviewed.

With that in mind, here are ten tips to consider when quitting your job:

1. Provide Notice

Usually, two weeks’ notice is appropriate, but it is very important (if possible) to provide enough time for your employer to find a replacement.

2. Tell your Supervisor First

Do not let your supervisor find out from others in the workplace that you are leaving your job. A supervisor will most often be offended if they learn from others that an employee is leaving. Tell your supervisor about your decision to leave first.

3. Finish Strong

In your last two weeks of work (or whatever period of time is agreed upon), work harder than you have before. Organize your files and make sure that everything is ready for your replacement. Not only do employers and supervisors respect this, but they will remember the departing employee fondly for years to come.

4. Don’t Take Company Materials

This comes up quite often. Make sure that you are up to date on company policies on what materials (example: prior work product) that you can take with you. Many materials are proprietary, and taking them without permission can cause a departing employee significant harm to their career.

5. Train Your Replacement

Be as thorough and helpful as possible when training your replacement. Leaving your employer with a smooth transition can help you in the future.

6. Do Not Say Anything Negative

It is critical that a departing employee not say anything negative about supervisors or other employees as they are preparing to leave. Be positive, and if there has been a negative situation in the past, the departing employee should just understand that they are moving to a new position and will no longer have to deal with the issue.

7. Ask for a Reference

If a departing employee has handled their departure smoothly, it is a great time to ask for a reference letter from a supervisor. These letters can be invaluable later. Also, supervisors will be able to give their best recommendation when an employee is still working for them.

8. Return All Employer Property

It is important to return any employer property that a departing employee has, including documents, keycards, computers or phones, and anything that belongs to the employer. Be proactive with this. A departing employee should not wait to be contacted about employer property later.

9. Don’t Brag About Your New Position

Bragging about a new position can leave supervisors and co-workers with bad feelings or jealousy after a departing employee has left. Modesty is key.

10. Be Thankful on Your Way Out

While there may be reasons that an employee has decided to move to their new position, a former employer or supervisor will also remember an employee who is thankful for the opportunities that they received. Do not miss this opportunity. Thank you notes to a supervisor or co-workers can be much appreciated and long remembered.

An employee should remember that even though they are leaving their position for a new one, it is critical to do so gracefully. If a departing employee makes a smooth transition, they can often obtain goodwill and great references for the remainder of their career.

If you are in need of advice regarding noncompete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

There are several reasons why federal employees should hire an experienced federal employment attorney if facing a potential disciplinary action, security clearance issues, equal employment opportunity violations, whistleblower claims, investigations, or disability retirement issues.

Here are seven reasons why a federal employee should hire a federal employment lawyer when the need arises:

1. Resolve Issues Early

With a federal employment lawyer, a federal employee may be able to resolve disciplinary action, equal employment issues and security clearance matters early, before they get worse and potentially lead to removal or result in other adverse situations for the federal employee in the workplace.

2. Identity Potential Reasonable Accommodations

For federal employees with disabilities, a federal employment lawyer can help identify potential reasonable accommodations for them to assist them in making the workplace better for them.

3. Get Accurate Advice on Confusing Issues and Claims

Federal employment lawyers understand the nuances of the different statutes that govern federal employee issues before the Merit Systems Protection Board, Equal Employment Opportunity Commission, security clearance authorities at each agency and the U.S. Office of Special Counsel. These different venues/issues can be confusing and are often intertwined. Getting accurate advice is very important. A Federal employment lawyer helps to provide clarity and understanding amongst confusing claims and complex laws to help federal employee clients.

4. Identify Claims of Defenses Not Previously Considered

The complicated language of federal laws can be challenging for federal employees outside of the legal profession to understand thoroughly. There may be a basis for a defense or perhaps a separate claim against a federal agency that a federal employee is unaware of unless they have the benefit of representation by a federal employment lawyer.

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Noncompete agreements in the Commonwealth of Virginia have undergone some changes since 2020. It’s very important to obtain legal advice before signing a noncompete agreement since noncompete issues often arise when an employee is facing termination from employment or a decision to leave an employer.

What is a Noncompete Agreement?

A noncompete agreement is a contract in which an employee agrees to give up a right that they would otherwise have in exchange for something from an employer. An employer often ties a noncompete agreement or clause to severance payments. The general purpose of a noncompete agreement is to ensure that a former employee does not use the knowledge they have gained with an employer and then later attempt to compete against them using this knowledge.

Virginia Requirements for Noncompete Agreements

In general, a noncompete agreement in Virginia must be reasonable to be valid. An agreement that restrains competition “must be evaluated on its own merits, balancing the provisions of the contract with the circumstances of the businesses and employees involved.” Omniplex World Servs. Corp. v. US Investigations Servs, 618 S.E.2d 340, 342 (2005).

According to the Virginia Supreme Court, in order to be enforceable, a noncompete agreement must meet a three-part test. Under this test, the employer bears the burden to show that the non-compete agreement or clause is:

1. no greater than necessary to protect a legitimate business interest,
2. is not unduly harsh or oppressive in curtailing an employee’s ability to earn a livelihood and
3. is reasonable in light of sound public policy.

Modern Env’Ts v. Stinnett, 561 S.E.2d 694, 695 (Va. 2002); Assurance Data v. Malyevac, 747 S.E.2d 804, 808 (Va. 2013); Gordon v. Blue Mt. Therapy, 2021 U.S. Dist. LEXIS 105432 (W.D. Va. June 4, 2021).

Determining the enforceability of such an agreement “requires consideration of the agreement in terms of function, geographic scope and duration, with these factors considered together.” Home Paramount Pest Control Cos., Inc. v. Shaffer, 718 S.E.2d 762, 764 (Va. 2011).

When applying these tests in Virginia, the courts have become more employee friendly in recent years. Noncompete agreements that are too vague or cumbersome may be invalidated. Courts are more likely to enforce noncompete agreements that are reasonable, have a limited geographic scope and are precise in their terms.

Virginia Recently Barred Noncompete Agreements for Low-Wage Workers

Virginia has also added new protections for low-wage workers, exempting them from noncompete agreements. As of July 1, 2020, Virginia now prohibits employers from placing noncompete restrictions on low-wage employees. This law only applies to noncompete provisions that came into effect on or after July 1, 2020. See Virginia Code § 40.1-28.7:8.

Contact Us

When noncompete issues arise, it’s important to get legal advice early and not wait until issues develop. These types of agreements, even if already in effect, may be renegotiated. If you are employed in Virginia and have signed or are considering signing a noncompete agreement, you should seek the advice of a qualified Virginia employment lawyer.

If you are in need of advice regarding noncompete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry, Esq., www.berrylegal.com

Many employees that leave or are terminated from their employment in Virginia enter into severance agreements. Most employees in Virginia are considered “at will,” which generally means they can be terminated or resign at any time. Even if these employees are “at will,” an employer may offer severance to an employee in exchange for an employee’s waiver of their rights, including the right to file suit for any work-related issues (e.g. discrimination/harassment claims).

In the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will always require that the employee sign a severance agreement, which will include a general release of liability. It’s very important to obtain legal advice before signing such an agreement.

What is a Severance Agreement?

A severance agreement is simply a contract between an employee and an employer that spells out the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs or in other situations.

In order for a severance agreement to be valid, it must typically provide something of value to the employee. For example, in most cases, financial benefits are provided to the departing employee by an employer in exchange for a waiver of the employee’s rights. Often, an employee receives continued salary for a period of weeks or months in exchange for a release.

The terms of a severance agreement are generally negotiable between the employer and employee (and their attorneys).

Areas of Consideration in Severance Agreement Terms

Some of the issues that can be bargained over in severance agreement include, but are certainly not limited to:

• Financial terms for the departing employee
• The clearing of termination or other discipline from an employee file
• Agreed to reference letters or contact points
• Non-compete clauses
• Non-solicitation clauses
• Non-disparagement clauses
• Non-disclosure clauses
• Re-employment/re-hiring clauses
• Health benefits
• Unemployment compensation issues
• Description of claims waived
• Preservation of trade secrets

Each severance agreement is different, and an employee can typically benefit in negotiating the specific terms involved with the employer.

Before an employee enters into a severance agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the severance agreement. An employee will want to ensure that they know what they are signing and any potential admissions that they are making.

Conclusion

If an employee needs assistance in negotiating a severance agreement in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc or follow us on Twitter.

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

A reasonable accommodation is a modification to employment conditions or work practices that provides employees with disabilities equal opportunity at employment.

Reasonable accommodations apply to both employees and job applicants in all states and the District of Columbia. Most employees are generally covered under the Americans with Disabilities Act (ADA), but federal employees are covered under a similar law known as the Rehabilitation Act. In Virginia, employees are also covered under the Virginians with Disabilities Act. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce these laws.

Requesting a Reasonable Accommodation

A request for reasonable accommodation can be formal or informal. Some employers have specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and his/her immediate supervisor or human resources department.

The most typical accommodation involves an employee who has developed a medical condition or disability that requires some changes to his/her working arrangement.

The discussion between an employer and employee is often referred to as the “interactive process,” which means that the employer works with the employee in an effort to arrive at a reasonable accommodation that does not create an undue hardship on the employer. Although the employer is not required to grant every accommodation request, the employer is required to make a reasonable effort at resolving the accommodation at issue.

Examples of Reasonable Accommodations

• An employee develops a back disability and requests a new chair because his current chair is aggravating his back condition.
• An employee has developed a serious medical condition and is undergoing medical treatment in the morning. She informs her supervisor that she needs an adjustment in her start time for eight weeks while she undergoes treatment.
• An employee develops cancer and requests daily breaks at a certain time to take his medication.
• An employee develops a disability that prevents her from performing her assigned duties so she requests a position reassignment.

For more information, the EEOC has published additional guidance on reasonable accommodations.

Contact Us

If you are in need of legal representation or advice in security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.