Teleworking as a Reasonable Accommodation for Employees with Significant Disabilities

1. Teleworking as a Reasonable Accommodation for Employees with Significant Disabilities February 1, 2007 Co-sponsored by the Workplace RERC and Southeast DBTAC

2. Presenter Shelley Kaplan, Director Southeast DBTAC

3. 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.

4. Who’s Online?

5. 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

6. DBTACsNetwork of 10 Regional Centers with over 2,200 affiliates at the local, state and regional level

7. Funding U.S. Department of Education

8. 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 NewsMarch 22, 1994

9. 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 Benefits of Telecommuting

10. 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)

11. 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

12. UnderstandingCivil Rights Laws • Emotionalism • Balance and Compromise • Case-by-Case Analysis • Need a Context

13. Confusion:Split in the Circuit Courts 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).

14. 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.

15. 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

16. 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

17. 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

18. Jacob • Additional Reasonable Accommodations • Flexible work schedule • Transportation alternatives (paratransit eligibility) • Insulated clothing • Telework (6 months)

19. Jacob • Adversarial relationship develops… • Frequent and unpredictable absences from workplace

20. 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. 

21. 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. 

22. Wear Insulated Clothing

23. 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?

24. Guideline 1:Know What the Law Requires

25. 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

26. Guideline 2:Establish and Follow Procedures forRequesting Accommodations

27. Guideline 3:Keep the Process Flexible, Interactive and Respectful of All Parties Involved

28. Guideline 4:Establish Standards for Accountability and Procedures for Ongoing Feedback between Employee and Supervisor(s)

29. Guideline 5:Facilitate Inclusion of the Teleworking Employee in Workplace Activities

30. 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

31. 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

32. Still Have Questions? Contact us at • By telephone • 800-949-4232 (v/tty) • By Internet • www.sedbtac.org • www.workplacererc.org/