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State of the Science Conference
September 15-16, 2005
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A Framework for Providing Teleworking as a Reasonable Accommodation
RERC on Workplace Accommodations
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- A Framework for Providing Teleworking as a Reasonable Accommodation RERC on Workplace Accommodations
- OBJECTIVES
- Confusion: Split in the Circuit Courts
- Qualified Individuals with Disabilities
- Tonya's Situation
- Jacob's Situation
- Jacob's Situation
- Jacob's Situation
- Jacob's Reaction
- The Neurological Exam
- Jacob's Reaction
- Wear Insulated Clothing
-
Is Teleworking Reasonable?
- Guiding Principles
- Guiding Principle 1: Civil Rights Laws are Unique
- Guiding Principle 1: Civil Rights Laws are Unique - 1.1: Emotionalism
- Guiding Principle 1: Civil Rights Laws are Unique
A Framework for Providing Teleworking as a Reasonable Accommodation
RERC on Workplace Accommodations
September 16, 2005
Presented by Shelley Kaplan, MSccc
Developed by CATEA’s Southeast DBTAC with funding from NIDRR under grant
#H133D010207
© 2005 All Rights Reserved, Georgia Tech Research Corporation, Atlanta,
GA.
OBJECTIVES
- Describe one employer’s experience in considering telework
request as a reasonable accommodation
- Share lessons learned
- Provide a framework for others to use when evaluating telework as
a reasonable accommodation
Confusion: Split in the Circuit Courts
Courts differ regarding whether "work-at-home" is reasonable.
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).
Speaker Notes: No court denies teleworking as a reasonable accommodation, but
almost all have rejected it!
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
Speaker Notes:
All 4 given reasonable accommodation
Only Jacob and Tonya have positions that might allow them to telecommute
as necessary
Amanda & Maria’s EF require them to be onsite daily; but provided
with RA (ergonomic chair, telephone headset, reserved parking spaces; generous
leave policy to occasionally work at home—reports, newsletter)
Tonya/Jacob—both requested; one straightforward, the other complicated
by a variety of different factors
Tonya’s Situation
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
Speaker Notes:
Straightforward and relatively simple
Medication ameliorated depression; anxiety more difficult to regulate
Flexible schedule to arrive and leave later, and work from home as needed
(due to phobia in crowds)
Employer offered solutions
Everyone accustomed to working at a distance from start of her employment
Jacob’s Situation
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 (transportation and PCA issues)
- Telework during winter (3 months)
- Portable office heater to counteract A/C in summer
Speaker Notes:
Complicated by a variety of different factors
Sufficient for 1st 3 years; then disability progressed; intolerance
to fluctuating weather increased
Jacob’s Situation
- After 3 years, disability progressed
- Tolerance to cold deteriorated (>65°)
- Temporary paralysis of fingers and arms
- Reasonable Accommodations
- Transportation alternatives (paratransit eligibility)
- Request to telework for 6-months & as needed
Jacob’s Situation
- Adversarial relationship develops…
<li> Frequent and unpredictable absences from workplace
- Supervisor satisfied
- Staff concerns
- Administration concerns
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 (e.g., 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.
The Neurological Exam
- Senior Management asked him to see neurologist to determine if condition
could be medially managed
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.
Wear Insulated Clothing
Further restrict his limited movement
Agreed to wear insulated socks and shoes (as opposed to usual slippers)
as these didn’t negatively impact his maneuverability
Is Teleworking Reasonable?
Is Jacob’s request reasonable?
Does teleworking for 6 consecutive months cause undue hardship?
How does teleworking impact Jacob’s performance?
How can employer and employee reach a mutually acceptable solution?
Guiding Principles
Civil Rights Laws are Unique
Necessary Components for Change
Guiding Principle 1: Civil Rights Laws are Unique
1.1 Emotionalism
Speaker Notes:
PWD: rights denied; shame w/disclosure
Employer: do I have to? Won’t get work done; miss opportunities
Co-workers: not fair; shirking responsibilities
Guiding Principle 1: Civil Rights Laws are Unique - 1.1: Emotionalism
Speaker Notes:
Necessary to understand where the other is coming from; what is motivating
their reaction / response
Requires interaction to then be understanding and compassionate
Right frame of mind to understand each others’ needs
Guiding Principle 1: Civil Rights Laws are Unique
1.2 Balance & Compromise
Speaker Notes:
Neither side has the upper hand
Solution must be mutually beneficial and viewed as a win-win for
all
Process of negotiation
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