Telework Options for Employees with Disabilities 
in the 21st Century
July 2007

      The terms “telework” and “telecommute” refer to work done while away from the office.  As defined under the ADA, qualified persons with disabilities are entitled to perform their essential job functions with or without reasonable accommodations. The jobs most amenable to telework are information-based with minimal requirements of face-to-face contact. Critics suggest that telework will increase worker’s compensation claims and otherwise cost employer losses. Telework, however, decreases hiring and training costs, in part, by increasing loyalty. Moreover, teleworkers often are better able to perform a greater quantity of tasks and produce higher quality work.
      
      Congress has created a statutory and legislative framework to create, support, and encourage telework programs throughout the federal government. A recent report from the U.S. Government Accountability Office (GAO) recommends developing a consistent set of terms, definitions, and measures to promote a meaningful assessment of the success of federal telework programs. The GAO report identified 25 key practices which will help the government realize its telework goals, and which can benefit Title I employers. The report supports the proposed Telework Enhancement Act of 2007 to implement the required changes and promote the use of telework in the federal government.

      Despite the increasing number of teleworkers, courts generally have been unwilling to recognize telework as a reasonable accommodation for employees with disabilities. Some courts have concluded 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) defines “essential job functions” as the fundamental job duties of the employment position. Courts consider many factors when deciding whether a function is “fundamental” including how many employees hold the position, the specialization or expertise required, and whether the position exists solely to fulfill the function, among others. In Knutson v. Medtronic, Inc. (Minnesota, 8th Circuit, 2006), the court agreed with the employer that the plaintiff was not an otherwise qualified individual with a disability because she could not meet attendance requirements. Similarly, in Phillips v. Farmers Insurance Exchange (Texas, 5th Circuit, 2006), the court found that one of the essential functions of the job was driving, thus telecommuting would not allow her to perform that essential function. The decisions in Knutson and Phillips demonstrate the reluctance of courts to recognize telework as a reasonable accommodation for people with disabilities.
      
       In Cripe v. Mineta (District of Columbia, 2006), however, the employer fired the employee despite conceding the plaintiff was fully capable of performing the essential functions of the job through telework. The court held there was a genuine issue of material fact as to whether it was an essential function of the plaintiff’s position to work in the office. In Woodruff v. U.S. Department of Transportation (District of Columbia Circuit, 2007), the court held that it was not unreasonable to find that telework is a reasonable accommodation for an employee considering its past success as an accommodation in the agency. The decisions in Cripe and Woodruff may indicate a trend in some circuits toward recognizing telework as a reasonable accommodation for those employees whose job functions are amenable to telework.
      
      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 to employees who do not telework. To balance workloads, the employer should assign a different nonessential minor task that can be performed through telework to the employee with a disability. Furthermore, employers should not deny a request to telework simply because a job involves some contact and coordination with other employees. 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.
      
      Nationally known telework consultant, Gil Gordon, presents ways that employees can approach employers to request teleworking 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 of teleworking to both employer and employee. He further suggests providing examples of other employees within the company who successfully telecommute, and communicating with these employees. Broadband home internet access, inexpensive web conferencing options, email, instant messaging, and remote login to a work desktop computer, in addition to the telephone, make telework a viable alternative to many working in information-based careers.

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Prepared by the research staff of the Burton Blatt Institute (BBI):
Centers of Innovation on Disability at Syracuse University http://bbi.syr.edu/