teleworking as a reasonable accommodation for employees with significant disabilities
DESCRIPTION
Teleworking as a Reasonable Accommodation for Employees with Significant Disabilities. February 1, 2007. Co-sponsored by the Workplace RERC and Southeast DBTAC. Presenter. Shelley Kaplan, Director Southeast DBTAC. Online Meeting Tips. - PowerPoint PPT PresentationTRANSCRIPT
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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/