Telework as a Potential Reasonable Accommodation

by Michael Haberman on October 11, 2012 · 1 comment

 

Telework is seen by the EEOC as a potential reasonable accommodation under the ADAAA

I am a big fan of teleworking or telecommuting. No let me rephrase that, I am a HUGE fan of telework. I have seen it successfully performed for a long time and have performed it for a long time as well. I have written about it several times, here, here and here. Most companies consider telework as an alternative to employees coming to the office in order to save money, reduce the need for office space, employee engagement, employee satisfaction, ability to have a geographically spread team or for work/life balance reasons. However, more companies are being faced with this decision and have to consider telework as a potential reasonable accommodation.

Reasonable accommodation

The EEOC has provided guidance in the form of a fact sheet called Work At Home/Telework as a Reasonable Accommodation. In this fact sheet they define reasonable accommodation as “…any change in the work environment or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job, or gain equal access to the benefits and privileges of a job.” The whole process begins with the employee making a request for an accommodation. The EEOC points out that the employee does not have to use those specific words but they must inform the employer that their medical condition interferes with their ability to do their job. From that point there has to be what the EEOC calls a “flexible interactive process” between the employee and the employer.

Essential functions

In any job the ADA and the ADAAA require that an employer understands the essential functions of the job. Those are the basis for all decisions about a job, who you hire and whether they are capable of performing the work. When you are at the point of the interactive discussion it begins with both the employer and the employee reviewing what those essential functions are. Remember those essential functions are fundamental to the performance of the work.

In some jobs it is absolutely essential that the employee be on location. A job that requires physical observation of a process and physical manipulation of objects cannot be teleworked. A sous chef is not going to be able to ask for this accommodation. However, an accountant or secretary, with the appropriate technology might be able to with ease. So the review of the essential functions is important. Secondary functions that are not critical to the job but require a physical presence may have to be switched to another worker as part of the accommodation process.

Review of costs

Even if you were not evaluating a position in reasonable accommodation case you would still look at all the parameters of making a position one that allows telework, especially the cost of doing so. In a reasonable accommodation case looking at the costs is absolutely essential. One of the components of refusing an accommodation at unreasonable is excessive cost. You need to determine if you have the resident technology to allow for telework and if not what would it cost to put it into place.

You also have to look at the disruptive aspects of the telework, such as communication problems. You also need to determine if the individual involved is suited to work less or no direction. All these are factors you would normally consider in determining if a position could be transformed to telework for even a portion of the work.

Other resources

In addition to the resource fact sheet from the EEOC listed above and also found HERE, you can read the following two pieces from two of my favorite attorneys:

Jon Hyman in Telecommuting as a reasonable accommodation

And

Eric B. Meyer in Telecommuting as a reasonable accommodation, maybe or maybe not.

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