Monday, February 5, 2018

Telework as a Reasonable Accommodation.

By John V. Berry, www.berrylegal.com

Federal and private sector employees come to us to discuss the issue of reasonable accommodations in many types of cases. This article discusses the concept of seeking a reasonable accommodation in the form of a telework assignment.

Reasonable Accommodations in General

A federal agency must reasonably accommodate the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless it can show the accommodation would impose an undue hardship on its operations. 29 C.F.R. 1630.9. This is known as the reasonable accommodation process. Reasonable accommodation options include potential changed to the way in which the duties of a position are normally performed. Reasonable accommodations can take many forms.

Telework as a Reasonable Accommodation

That said, a federal agency is not required to change essential functions as a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) has stated that allowing an individual with a disability to work at home could potentially be a form of reasonable accommodation. We have seen federal agencies, in our practice, agree to these types of reasonable accommodations in the past.

However, a number of factors should be reviewed in determining the potential for working from home, including the employer's ability to supervise the employee properly and whether or not any duties require the use of certain equipment or tools (computer, fax, special machines) that cannot be replicated at home. Other important considerations include whether there is a need for face-to-face interaction with supervisors, co-workers and customers. Also, before a reasonable accommodation in the form of telework is granted, an employer will need to determine whether the position in question requires the employee to have immediate site access to documents or other data located only within the workplace (e.g. computers that have access to classified information). \

The EEOC has stated that an employer should not deny a request for telework as a reasonable accommodation completely on the basis that a job involves some contact and coordination with other employees. Today, with the use of computers and other devices, many tasks can in fact be completed at home and such an accommodation can be entirely reasonable.  The EEOC has issued a fact sheet on this topic which is very helpful in evaluating whether or not telework as a reasonable accommodation is a valid option. That fact sheet is located here.

Of note, the EEOC provides guidance as to whether or not a reasonable accommodation involving telework may be appropriate:

This determination should be made through a flexible "interactive process" between the employer and the individual. The process begins with a request. An individual must first inform the employer that s/he has a medical condition that requires some change in the way a job is performed. The individual does not need to use special words, such as "ADA" or "reasonable accommodation" to make this request, but must let the employer know that a medical condition interferes with his/her ability to do the job. Then, the employer and the individual need to discuss the person's request so that the employer understands why the disability might necessitate the individual working at home. The individual must explain what limitations from the disability make it difficult to do the job in the workplace, and how the job could still be performed from the employee's home. The employer may request information about the individual's medical condition (including reasonable documentation) if it is unclear whether it is a "disability" as defined by the ADA. The employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace. However, in some situations, working at home may be the only effective option for an employee with a disability.

EEOC Fact Sheet on Telework.

Conclusion

If you are a federal, public sector or private sector employee in need of a reasonable accommodation and need assistance, please contact us at www.berrylegal.com for assistance. We represent employees in the reasonable accommodation process. Please also visit our Facebook Page for additional information.

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