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Teleworking as a Reasonable Accommodation for

Employees with Significant Disabilities

Co-sponsored by the Workplace RERC

and

Southeast DBTAC

February 1, 2007

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Presenter

Shelley Kaplan, DirectorSoutheast DBTAC

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Online Meeting Tips• Set up your microphone and speakers prior to

the meeting.• Exit and close all background programs on your

computer (e.g., Outlook, Word, PowerPoint, etc.) to improve performance and avoid conflicts.

• Identify yourself each time you speak.• Press and hold the Control Key (CTRL) to talk.• Release the Control Key (CTRL) after you have

finished speaking.

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Who’s Online?

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OBJECTIVES

• Describe one employer’s experience in considering telework request as a reasonable accommodation

• Provide a framework for others to use when evaluating telework as a reasonable accommodation

• Provide forum for ongoing dialogue about other’s experiences

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DBTACs

Network of 10 Regional Centers with over 2,200 affiliates at the local, state and

regional level

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U.S. Department of Education

Funding

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Workers…have given up on the freeway

and now use the information super

highway to get to work. It’s called

telecommuting, and it’s catching on.

Tom BrokawNBC Nightly News

March 22, 1994

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Benefits of Telecommuting • Reduces employee

absenteeism and turnover

• Improves employee performance

• Provides operations contingency options

• Meets federal requirements

• Improves employee quality of work/life

• Reduces real estate costs

• Improves employee computer literacy

• Expands quality employee recruiting

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Legal Framework

• Americans with Disabilities Act of 1990

• Executive Order 13164 (July 26, 2000)

• New Freedom Initiative (February 1, 2001)

• EEOC Revises 1999 Policy Guidance(October 17, 2002)

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Fulfilling America’s Promise to Americans with Disabilities

Disability is not the experience of a minority of Americans. Rather, it is an experience that will

touch most Americans at some pointduring their lives.

President George W. Bush

New Freedom Initiative, February 1, 2001

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UnderstandingCivil Rights Laws

• Emotionalism

• Balance and Compromise

• Case-by-Case Analysis

• Need a Context

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Courts have differed regarding whether "work-at-home" can be a reasonable accommodation.

Compare Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995).

Courts that have rejected working at home as a reasonable accommodation focus on evidence that personal contact, interaction, and coordination are needed for a specific position.

See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995), aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996); Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).

Confusion:Split in the Circuit Courts

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Common Theme

Must be a fact-specific, case-by-case,

analysis of the essential functions of

the employee's job to determine

whether the employee's teleworking

request constitutes a reasonable

accommodation.

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Qualified Individuals with Disabilities

• Jacob– degenerative, progressive neuromuscular condition

• Tonya– psychiatric disability characterized by periods of

extreme anxiety that sometimes make it difficult for her to leave her home or to function in an office environment

• Amanda– physical condition characterized by intermittent flare-

ups of one-to-three days duration

• Maria– physical disability that is essentially stable

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Tonya• Writer / Editor• History of long episodes of depression and anxiety

(controlled w/o accommodation)– 1993 diagnosed as Bi-polar II– Request for flexible work schedule & self-contained

quiet workspace• Telework only as needed

– Office relocation• Telework routinely• Attend staff and planning meetings• Three month trial

– Job relocation• Telework routine already established

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Jacob• Training Manager / Information Specialist• Diagnosis: Spinal Muscular Atrophy

– degenerative & progressive• Symptoms

– Severe muscle weakness and contractures– Extreme intolerance to cold & fluctuating weather

conditions• Reasonable Accommodations

– Uses variety of AT– Flexible work schedule– Frequent “sun” breaks– Telework during winter (3 months)– Portable office heater to counteract A/C in summer

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Jacob

• Additional Reasonable Accommodations

– Flexible work schedule– Transportation alternatives (paratransit

eligibility)– Insulated clothing– Telework (6 months)

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Jacob

• Adversarial relationship develops…–Frequent and unpredictable

absences from workplace

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Jacob’s Reaction

I fail to see which essential function I am unable to perform by working from home. 

Missing out on the "office experience" does not in my eyes constitute an essential function

of my position, particularly when other staff with similar duties (i.e., preparation of

documents, providing TA, participating in staff meetings, etc.) are currently and in the past

working offsite, establishing that this is a common practice. 

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Jacob’s Reaction

I am at a loss as to how you all expect me to get to a doctor in cold temps when I can't even get to the office.  I can't drive my chair, can't move my arms, and my

reactions while crossing traffic are significantly diminished.  This to me

borders on unreasonable. 

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Wear Insulated Clothing

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Is Teleworking Reasonable?

• Is Jacob’s request reasonable?

• Does teleworking for 6 consecutive months cause undue hardship?

• Is his performance impacted?

• How can employer and employee reach a mutually acceptable solution?

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Guideline 1:

Know What the Law Requires

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EEOC Position• Decision-making should be made on an

individual, case-by-case basis between the employer and the employee

• Two questions:– (1) is the employee clearly unable to consistently

perform the essential functions of his/her job without the option of teleworking, and

– (2) is the job conducive to a work-at-home environment? Source: Work At Home/Telework as a Reasonable Accommodation

www.eeoc.gov/facts/telework.html

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Guideline 2:

Establish and Follow Procedures for

Requesting Accommodations

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Guideline 3:

Keep the Process Flexible, Interactive and Respectful

of All Parties Involved

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Guideline 4:

Establish Standards for Accountability and Procedures for Ongoing Feedback between

Employee and Supervisor(s)

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Guideline 5:

Facilitate Inclusion of the Teleworking Employee in

Workplace Activities

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Publications• Work At Home/Telework as a Reasonable

Accommodationwww.eeoc.gov/facts/telework.html

• ADA: Title I Technical Assistance Manualwww.adaportal.org/Employment/Browse_TAM_I/Browse_TOC.html

• Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (revised Oct 17, 2002) www.eeoc.gov/policy/docs/accommodation.html

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Publications• Procedures for Providing Reasonable

Accommodation for Individuals with Disabilitieswww.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html

• Reasonable Accommodation Reporting Formwww.eeoc.gov/policy/docs/eeocprocedures-form3.html

• Employer's Practical Guide to Reasonable Accommodation Under the ADAwww.jan.wvu.edu/Erguide/Three.htm

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Still Have Questions?

Contact us at

By telephone800-949-4232 (v/tty)

By Internetwww.sedbtac.orgwww.workplacererc.org/