Telework Options for Employees with Disabilities in the 21st Century Rachel A. Stanley * Michael J. Messinger July 2007 Prepared for: Shelley Kaplan Director Southeast Disability and Business Technical Assistance Center http://www.sedbtac.org/ Introduction The terms “telework” and “telecommute” refer to work done while away from the office. They frequently are used interchangeably though they do not necessarily share the same meaning. Telework is the word most commonly used in Europe, while telecommuting is heard mainly in the United States.1 Some consider telework a more accurate description of the actions performed because “tele” means “distance,” so “telework” means “work at a distance.”2 Many consider “telecommute” too narrow because of its focus on commuting.3 For the purpose of this brief, we use “telework” as the more inclusive term.4 Qualified persons with disabilities are entitled to perform their essential job functions with or without reasonable accommodations.5 Though the number of teleworkers continues to grow exponentially,6 courts generally have been unwilling to recognize telework as a reasonable accommodation for employees with disabilities when the employer considers working in the office essential to the job. Courts that have rejected telework as a reasonable accommodation focus on evidence showing that personal contact, interaction, and coordination are needed to fulfill the requirements of the position.7 Congress has created a statutory and legislative framework to create, support, and encourage telework programs throughout the federal government.8 This framework focuses on increasing the number of employees eligible for telework, setting goals for and monitoring the success of telework implementation, establishing leaders to direct telework initiatives, and punishing agencies that do not meet expectations.9 In this brief, first we provide an overview of recent telework policies and practices. Second, we analyze telework as a reasonable accommodation under current Americans with Disabilities Act (ADA) decisions in the U.S. courts. Finally, we offer recommendations for approaching an employer to request telework as a reasonable accommodation. I. The Policies and Practices of Telework Teleworkers on average work one to two days per week (5.5 days/month) from home and about one to three days in the office.10 The jobs most amenable to telework are information-based with minimal requirements of face-to-face contact.11 Positions that are portable, that require only a phone or fax machine combined with email, or that can be taken home in a box or briefcase are most easily converted to telework positions.12 Critics suggest that telework will increase worker’s compensation claims and otherwise cost employer losses. 13 Telework, however, decreases hiring and training costs in part by increasing loyalty.14 Moreover, teleworkers often perform “more and better work, are meeting their deadlines better, and are better able to juggle multiple priorities” than their counterparts working in the office.15 For example, “British Telecom, which has 80,000 employees, found productivity rose 31% among its 9,000 teleworkers, due to lack of disruptions, stress and commuting time.”16 According to Gil Gordon, an expert on telework, employers save 63% of absenteeism costs per teleworker per year, a substantial savings for the employer because absenteeism averages $660 per employee per year.17 The Director of Strategic Issues at the U.S. Government Accountability Office (GAO), Bernice Steinhardt, recently issued a statement to the Senate subcommittee on Oversight of Government Management lamenting the inability of the federal government to promote telework in the federal government and suggesting ways to remedy this problem.18 Ms. Steinhardt attributes the federal government’s inability to promote telework, in part, to its failure to establish consistent performance measures and program evaluations.19 Steinhardt emphasized that Congress will be better able to promote a meaningful assessment of progress in agency telework programs if the Office of Personal Management (OPM), working through the Chief Human Capital Officers Council (CHCOC), develops a consistent set of terms, definitions, and measures.20 Steinhardt further supports the proposed Telework Enhancement Act of 2007 (S.B. 1000) to implement the required changes and promote the use of telework in the federal government.21 II. Telework as a Reasonable Accommodation When Challenged in a Court of Law Studies of ADA implementation suggest that far more accommodations are implemented than litigated.22 Comprehensive studies of successful telework as a reasonable accommodation are not available. In a related study of reasonable accommodations, the Job Accommodation Network (JAN) found 57 survey respondents (5%) indicated they seriously considered telework as an accommodation after speaking with a JAN consultant.23 Of those, about half (30 or 56%) had implemented the accommodation at the time of the survey, while 13 (25%) eventually rejected it.24 Ten respondents awaited a decision on their accommodation request at the time of the survey.25 Courts, however, have been reluctant to view telework as a reasonable accommodation for an employee with a disability. Some courts conclude that a person’s physical presence in the workplace is an essential job function, thus, denying telework as a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC), the entity that has the statutory authority to enforce the employment provisions of the ADA, defines “essential job functions” as “the fundamental job duties of the employment position [that] the individual with a disability holds or desires[;] . . . [they do] not include the marginal functions of the position.”26 Factors to be considered when determining whether a particular job function is essential including whether: the position exists solely to fulfill the function, there are a limited number of employees to whom the function can be distributed, and/or the function is highly specialized so that the person is hired for her expertise in the function.27 Given these criteria, while a number of jobs may require regular physical presence (e.g., shift supervisor or chef), these criteria would not preclude many others from part-time telework (e.g., attorney or landscape architect). The EEOC further provides that evidence of an essential job function can include the employer’s judgment, written job descriptions, time-intensity of the function, consequences of not performing the function, the terms of collective bargaining agreements, the experience of employees who previously performed the job, and current work experience of employees in similar jobs.28 Courts frequently conduct an individualized inquiry when applying these additional considerations. In Knutson v. Medtronic, Inc. (Minnesota, 8th Circuit), the plaintiff’s rotator cuff, back, shoulder, and knee limitations hindered her ability to work full-time.29 The employer criticized her for being unable to attend staff meetings, viewed her inability to work full-time as regular absenteeism, and gave her poor performance reports.30 She was allowed to work from home after a required surgery; however, the employer criticized the plaintiff again for requiring additional time off for a post-surgery infection.31 After she was fired for absenteeism, the plaintiff filed suit under Title I of the ADA alleging that her employer discriminated against her by not accommodating her disability.32 The employer argued that the plaintiff was not an otherwise qualified individual with a disability because she could not meet the attendance requirements.33 The District Court of Minnesota found that the plaintiff was not a qualified individual because regular and reliable attendance was an essential job function that she could not perform.34 Similarly, in Phillips v. Farmers Insurance Exchange (Texas, 5th Circuit), the plaintiff’s job required “in the field” driving to accident sites.35 After working for Farmers Insurance for 5 years with consistently poor performance reports, the plaintiff began experiencing seizures and was unable to drive.36 The employer allowed the plaintiff to do only those functions she was able and permitted to do and encouraged her to seek assistance with other functions from her co-workers.37 Her seizures continued for several months and the plaintiff requested she not be required to drive.38 Her employer noted that she was not completing the functions she was able and permitted to do, and terminated her employment.39 Upon hearing the plaintiff’s ADA claim of discrimination based on her disability,40 the District Court for the Northern District of Texas found that one of the essential functions of the job was driving, thus telecommuting would not allow her to complete the essential job functions.41 In Cripe v. Mineta (District of Columbia), however, the plaintiff had anxiety attacks and was diagnosed with HIV.42 He worked from home two days a week before his employer created a new policy prohibiting telework.43 The plaintiff requested a continuance to work from home, but the employer denied the request without proof of the plaintiff’s condition.44 Despite receiving the required medical documentation, the employer terminated the plaintiff’s telework privileges because of the new company policy. Subsequently, the plaintiff filed a claim under Title I of the ADA to enforce telework as a reasonable accommodation. During trial, the defendant conceded that there was no doubt that the plaintiff was able to complete the essential functions of his job when he was telecommuting.45 The District Court for the District of Columbia found there were genuine issues of material fact as to whether the plaintiff was disabled and whether the employer accommodated the plaintiff.46 In Woodruff v. Peters (D.C. Circuit), an employee of the Federal Aviation Administration (FAA) was injured by a fall at work, necessitating a lengthy recuperation period, extensive rest, and daily therapy.47 Initially, plaintiff’s manager permitted Woodruff to perform his supervisory duties through telework.48 However, despite the plaintiff’s satisfactory performance with disability accommodations, plaintiff’s manager rescinded the telecommuting agreement because he did “not know from day-to-day whether [the plaintiff would] report to the office.”49 The District Court dismissed the plaintiff’s discrimination claim on summary judgment. The Court of Appeals reversed this grant of summary judgment because it was not clear whether the accommodations were unreasonable.50 The Circuit Court of Appeals for the District of Columbia found it persuasive that: the FAA permitted another employee from Woodruff’s division to perform substantially the same duties via telework, Woodruff’s described his team as “mostly self-directed”, and the FAA accommodated Woodruff for several months prior to revoking the telework agreement.51 These circumstances cast doubt on the proposition that the “accommodations would impose an undue hardship on the FAA or that even with such accommodations Woodruff would be unable to perform all the essential functions of his job.”52 In both Knutson and Phillips the courts found that physical presence was an essential function of the job. Thus, telework could never be a reasonable accommodation. The decisions in Knutson and Phillips show the reluctance of courts to recognize telework as a reasonable accommodation for people with disabilities. The decisions in Cripe and Woodruff, however, suggests some courts may be willing to recognize telework as a reasonable accommodation for those employees who do not have poor performance reports and whose job functions are amenable to telework. Technology continues to enhance the lives of many persons with disabilities (e.g., voice recognition software) and can be used to accommodate the needs of employees and employers.53 For instance, a progressive form of telework may have benefited both employee and employer in Johnson v. Trustees of Durham Technical Community College (North Carolina Court of Appeals).54 The plaintiff taught literacy skills to inmates at the Durham County Jail Annex.55 As a result of childhood polio, plaintiff used crutches and at times a wheelchair to access the Jail Annex.56 She was considered a part-time employee, and was employed by contracts of varying length depending on the course taught.57 During a two and a half year period, she entered into eight employment contracts with her employer.58 After breaking her leg while accessing the Annex, the plaintiff’s supervisor suggested that she teach children with disabilities at the main campus which would provide the plaintiff with improved physical access.59 The plaintiff rejected the offer because she had no experience as a special education teacher.60 Her employer subsequently refused to extend her employment contract.61 Initially, the employer cited safety reasons for dismissing the plaintiff, though there were partially-corroborated allegations that she brought illegal substances with her into the prison.62 Nonetheless, widely available web conferencing applications could have been used as a reasonable accommodation for her to continue teaching literacy skills to the inmates.63 III. Recommendations Telecommuting is an increasingly useful and requested way to work. Employers are encouraged to allow telework as a reasonable accommodation for valuable employees because an employee’s level of performance at the office is a good indicator of how successful s/he will telework.64 The EEOC advocates an interactive process between the employer and employee to set in place reasonable accommodations.65 Employers gain valuable insight into possible options by consulting with the employee, who often is in the best position to know what accommodations will meet his or her needs.66 The success of this interactive process largely depends on establishing a relationship of trust between the employer and employee in which both parties actively listen to the arguments for and against telework.67 Furthermore, a standardized framework that delineates an established protocol to guide this interactive process will keep the process transparent, reduce misunderstandings, document the process, and ensure that the telework program is administered in a consistent manner.68 The EEOC suggests ways that employers may use telework programs as a reasonable accommodation. For instance, employers should reassign nonessential duties or functions of the job that cannot be performed through telework if the employee with a disability is able to perform the essential functions of the job through telework.69 If a nonessential duty is reassigned, the employer should balance employee workloads by assigning a different minor task that can be performed through telework to the employee with a disability.70 Furthermore, employers should not deny a request to telework simply because a job involves some contact and coordination with other employees.71 Rather, employers should permit the employee to communicate and coordinate with other employees through telephone and e-mail to determine the feasibility of working at home.72 Nationally known telework consultant, Gil Gordon, suggests many ways that employees can approach employers to request telework privileges. He recommends asking for a trial period and working from home for a very short period of time (e.g. one day a month) to demonstrate the benefits to both employer and employee.73 He further suggests providing examples of other employees within the company who successfully telecommute and encourages communication with the successful employee.74 The GAO identifies key practices for successful federal telework programs. In part, these include: (1) establishing a pilot telework program and policy, (2) designating a telework coordinator, (3) developing a telework implementation plan, (4) establishing equitable eligibility criteria, (5) developing a telework agreement for use between the teleworker and supervisor including the means for effective communication, and (6) establishing procedures for tracking and evaluating program progress.75 * Ms. Stanley is a 2007 graduate of the Syracuse University (SU) College of Law. Mr. Messinger is a 2008 J.D. candidate at the SU College of Law. Both worked under the direction of William N. Myhill, M.Ed., J.D., Senior Research Associate at the Burton Blatt Institute (BBI) and Adjunct Professor of Law at SU; 900 S. Crouse Ave., Crouse-Hinds Hall, Suite 300, Syracuse, New York 13244; email – wmyhill@syr.edu; phone – (315) 443-1367. For additional information on related law and policy issues, see http://bbi.syr.edu. 1 Gil Gordon Associates, Telecommuting Tools: What’s the Difference Between “Telecommuting” and “Telework”? (2007), available at http://www.gilgordon.com/telecommuting/adminfaq/admin01.htm. 2 Id. 3 Id. 4 Id. 5 42. U.S.C. § 12111(8) (2000). 6 Gil Gordon Associates, supra note 1. 7 Shelley Kaplan, Sally Weiss, Nathan W. Moon & Paul Baker, A Framework for Providing Telecommuting As a Reasonable Accommodation: Some Considerations on a Comparative Case Study, 27 Work 431, 432 (2006). 8 Gov’t Accountability Office, Greater Focus on Results in Telework Programs Needed 1 (GAO-07-1002T, June 12, 2007) (statement of Bernice Steinhardt, Before the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, Committee on Homeland Security and Governmental Affairs, U.S. Senate), available at http://www.gao.gov/new.items/d071002t.pdf 9 Id. 10 Gil Gordon Associates, Telecommuting Tools: How Do You Decide What Jobs Are Best for Telecommuting? (2007), available at http://www.gilgordon.com/telecommuting/selectionfaq/selection11.htm; Telework Coalition, Telework Facts, available at http://www.telcoa.org/id33.htm (last visited May 18, 2007). 11 Gil Gordon Associates, supra note 10. 12 Id. 13 Gil Gordon Associates, Telecommuting Tools: Aren’t There Big Liability Risks for the Employer? (2007), available at http://www.gilgordon.com/telecommuting/adminfaq/admin11.htm. 14 Telework Coalition, supra note 8. 15 Id. 16 Id. 17 Id. 18 GAO, supra note 8, at 1. 19 Id. at 6 20 Id. 21 Id. at 1 22 Peter Blanck, Eve Hill, Charles D. Siegel, & Michael Waterstone, Disability Civil Rights Law and Policy: Cases and Materials (Thomson/West, 2006). 23 Email from D.J. Hendricks, JAN Project Manager, to William N. Myhill, BBI Senior Research Associate (Apr. 6, 2007, 5:34 pm) (on file with William N. Myhill). 24 Id. The survey results do not indicate if it was the employee or the employer who eventually rejected telework as a reasonable accommodation. 25 Id. Information on the remaining 4% of those surveyed was unavailable. 26 29 C.F.R. § 1630.2(n) (2007). 27 Id. § 1630.2(n)(2)(i)-(iii). 28 29 C.F.R. § 1630.2(n)(3)(i)-(vii). 29 No. 05-180 (RHK/JSM), 2006 WL 1851142, at *1 (D. Minn., Jul. 3, 2006). 30 Id. at *3. 31 Id. at *2. 32 Id. at *5. 33 Id. at *7. 34 Id.; see also Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999). 35 No. Civ. 3:04-CV-1113N, 2006 WL 888095, at *1 (N.D. Tex., Feb. 9, 2006). 36 Id. 37 Id. 38 Id. 39 Id. 40 The court’s opinion only indicates that the plaintiff made allegations under the ADA and the Family Medical Leave Act (FMLA) for discrimination. Based on the headings of the opinion (e.g., “Phillips Could Not Perform the Essential Functions of Her Job and Requested an Unreasonable Accommodation,” “Phillip’s Dismissal Was Not Retaliation”), however, the plaintiff likely claimed she was not provided a reasonable accommodation for her disability and that her employment termination was a retaliatory discharge. Id. at 2–3. 41 Id. at 2. 42 No. Civ.A.03-2206(RWR), slip op. at 1 (D.D.C., Jun. 29, 2006), available at 2006 WL 1805728. 43 Id. The opinion does not indicate whether the employer’s new policy prohibiting telework was questioned by employees. 44 Id. 45 Id. at *4. 46 Id. 47 482 F.3d 521, 523 (D.C. Cir 2007). 48 Id. 49 Id. at 524 50 Id. at 528 51 Id. 52 Id. 53 William N. Myhill, Voice Recognition Software, In Encyclopedia of American Disability History (Susan Burch ed., Facts On File, Inc.) (forthcoming 2007). 54 535 S.E.2d 357 (N.C. Ct. App. 2000). 55 Id. at 359. 56 Id. 57 Id. 58 Id. 59 Id. at 360. 60 Id. 61 Id. 62 Id. 63 William N. Myhill, Deepti Samant, David Klein, Shelley Kaplan, María Verónica Reina, & Peter Blanck, Distance Education Initiatives and Their 21st Century Role in the Lives of People with Disabilities, In Distance Education (Frank Columbus, ed., Nova Science Publishers, forthcoming 2007). 64 Gil Gordon Associates, Telecommuting Tools: I Really Want to Start Telecommuting. Any Tips for Convincing My Manager to Let Me Begin? (2007), available at http://www.gilgordon.com/telecommuting/selectionfaq/selection01.htm. 65 Kaplan et al., supra note 7, at 432. 66 Id. at 436. 67 Id. at 438. 68 Id. at 440 69 U.S. Equal Employment Opportunity Commission, Work at Home/Telework as a Reasonable Accommodation, available at http://www.eeoc.gov/facts/telework.html (last modified Oct. 27, 2005). 70 Id. 71 Id. 72 Id. 73 Gil Gordon Associates, supra note 64. 74 Id. 75 GAO, supra note 8, at 10 ?? ?? ?? ?? 5