Telework as ADA Accommodation on the Rise

Often, working remotely is the simplest accommodation for a host of impairments 

11/17/2011  By Joseph Marks       The use of telework as a reasonable accommodation under the Americans with Disabilities Act (ADA) has increased in recent years, experts say. It’s unclear, though, how much of the increase was spurred by 2008 amendments that brought many short-term disabilities and illnesses under the act’s jurisdiction and how much is attributable to the boom in businesses’ adoption of telework, they said. That boom was spurred partly by technological advances that make it easier for employees to mimic their work environment at home and for employers to keep tabs on distant subordinates. Experts say a mandate by the Obama administration that federal agencies implement telework plans by June 2011 played a role. It was spurred, too, by companies’ drive to save money on energy and real estate. IBM, for instance, has saved an estimated $50 million in real estate costs through telework. Sun Microsystems has saved $68 million. Many companies have telework policies that are easy to turn to when it’s time to find an ADA accommodation or they can envision how such a program would work, said Linda Batiste, an attorney and principal consultant with the Job Accommodation Network (JAN), a service of the U.S. Labor Department that advises companies on reaching ADA accommodations. Before passage of the ADA Amendments Act in 2008, about 1 percent of questions employers posed to JAN dealt with telework, said Beth Loy, a JAN consultant and researcher. That figure jumped to 3 percent after the amendments act became law in 2009. It has remained steady since then, Loy said—even after a final round ofEqual Employment Opportunity Commission regulations clarifying the act’s reach was published in March 2011. Those EEOC regulations don’t change which employees are eligible for telework as an accommodation, said Sharon Rennert, a senior attorney advisor in the commission’s ADA division. But the widening of the act’s scope means that more accommodations are happening overall and telework is heavily represented. Many of the disabilities covered under the guidance for the first time are short-term impairments such as recovering from an injury or surgery that would hinder an employee from driving into work but not from putting in several hours at a home computer, she said. In addition, the March 2011 regulations broadened the meaning of disability to include impairments that don’t restrict major life activities significantly or do so only periodically, such as epilepsy or cancer that isn’t in remission. The rules expand protections for employees who are “regarded as” being disabled—even if there’s not a clear-cut argument for disability status under other portions of the law. Offices that don’t have established telework policies might create a one-time arrangement to accommodate an employee, Batiste said. For companies with telework policies, a reasonable accommodation might mean expanding the number of days an employee can telework each week, she said, or allowing an irregular telework schedule as, say, pain from a chronic condition ebbs and flows. Not having a telework program isn’t a valid reason to deny an accommodation request, Batiste said, but employers can refuse a telework request that’s unduly burdensome, such as if the employee handles highly sensitive data that would be too expensive or too risky to secure on a home computer. For employers that are uncomfortable with telework, Rennert recommended that they draw up a plan for precisely how the employee will do his or her work remotely and how a supervisor can monitor that work. Then, she said, the employer and employee can try out telework for a few weeks without committing to it as a long-term accommodation. “Maybe some issues will come up that will require modifying the telework agreement in some way,” she said, “and they can talk those things through and change the accommodation. It’s important to remember that this has to work for both sides.” Joseph Marks is a freelance writer based in Washington, D.C.