Many federal employers are reluctant to provide full-time telework to its employees who have disability accommodation needs. Managers may believe that, instead of providing 100% telework, a reasonable compromise is to allow an employee to take some telework, but to require the employee to come in one or more days per week. Actually, this “compromise” often backfires it typically proves the opposite – that 100% telework is reasonable and appropriate.
If an employer believes that an employee can accomplish the essential functions of his or her position while teleworking some of the time, what is the reason that the employee needs to be in the office at all? The fact that some work can be done while teleworking suggests that, absent special requirements, all of the employee’s work can be done via telework.
Providing some telework can prove that all telework is effective for an employee’s accommodation needs
In Fernanda H., the agency accommodated the employee with four days per week of telework, but required her to come in on the fifth day and to work in a specially outfitted office. The EEOC held that this office was not an effective accommodation because the employee needed lighting-related accommodations both inside and outside of her office, such as in conference rooms and in bathrooms. Using the special office did not meet her needs.
Noting that the agency did not provide a effective accommodation, the EEOC used the fact that it approved four days per week of telework against the agency:
the Agency was already in possession of sufficient medical evidence to support the granting of four days of telework and the Agency has not shown that such evidence, while sufficient to justify granting four days, was somehow insufficient to grant one additional telework day per week.Fernanda H. v. Kijazaki (SSA), EEOC Case No. 2020004066 (Dec. 21, 2021).
Many federal employers make the same mistake, believing that granting some telework is better than none. But if some, why not all?
Forcing employees to take leave is worse, when telework is granted
In Fernanda H., the employee apparently did not stay at home and instead suffered through the agency’s ineffective accommodations one day per week. But some employees with partial telework accommodations are not so lucky. Some are even told to just take leave on days when leave is not approved. Does that work?
Nope. Forcing an employee to take leave when an available accommodation, such as telework, would be effective can be a violation of the ADA. See Lavern B. v. EEOC Case No. 0720130029 (2015). In that case, the employee was forced to take leave instead of teleworking when he had severe back disabilities that prevented him from being able to drive.
In another case, the EEOC has held:
[W]hile an employer may choose between effective accommodations, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.Denese v. Dep’t of the Treas., EEOC Appeal No. 0120141118 (Dec. 29, 2016).
100% telework is not always the right solution to reasonable accommodation needs. For example, an employee who could just as easily be accommodated by being moved to a new space that met her needs would not require telework accommodations.
Forcing an employee to take leave instead of providing an accommodation that would meet that person’s accommodation needs violates the disability laws. For example, in Don F. v. Saul (SSA), EEOC Case No. 2019002029 (September 22, 2020), a judge for the SSA needed to have telework because he was receiving immunotherapy for stage four cancer. Instead of just allowing him to work from home when he was not conducting hearings, the Agency forced him to take leave. The EEOC asked legitimately, Why? The Agency had no answer. The EEOC held that this was discriminatory failure to accommodate.
Why does management do this?
What’s really going on here? The reality is that managers generally do not want to provide reasonable accommodations for telework because they are afraid that other employees will the same. Management is trained to believe that treating everyone the same is the correct way to handle any situation, thus avoiding any instance of unfair favorable treatment. Giving one employee an accommodation means everyone gets to to have the accommodation, right?
No. The ADA requires reasonable accommodations for individuals who have a disability and a need for such accommodation. This is federal statutory law under the ADA and Rehabilitation Act. The rights of a person with a disability cannot be made contingent upon how other employees might react to their legal entitlement.
A less charitable view is that managers want to avoid extra work, just like the rest of us. They’re lazy, and they do not want to spend the time providing an accommodation that will probably make their job (a little) harder. But that’s why there is a law.