A disabled employee who wants to work at home and communicate by phone, fax, and email—“telework” or “telecommuting”—can convince employers to accommodate a telework request under the Americans with Disabilities Act (ADA). As a federal court in Ohio recently noted, communications technology has expanded so much, working at home is a reasonable approach to accommodating disability. Core v. Champaign County Board of County (D. Ohio July 30, 2012). The big issue regarding telework is whether or not an employee can telework and perform the essential functions of a job. This is true nationally as well as in federal courts covering Maryland and Virginia. E.g., Tyndall v. National Education Centers, Inc., of California, 31 F.3d 209, 213 (4th Cir. 1995). Where employees in the workplace already telecommute, this is evidence the job can be done remotely. Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1136-1137 (9th Cir. Cal. 2001). The Equal Opportunity Employment Commission (EEOC) views telecommting as a viable accommodation. EEOC, Work At Home / Telework as a Reasonable Accommodation (Revised 2005). The EEOC supports telework as an accommodation both for workplaces that feature it, and workplaces that don’t. In addition, the federal government as an employer supports telecommuting. Today, the U.S. government is implementing telework and telecommuting as part of its fundamental work structure, begun in 2000 and expanded under the Telework Enhancement Act of 2010. The federal government currently views telework as supplemental to onsite work. Guide to Telework (U.S. Office of Personal Management April 2011). Under the Americans with Disabilities Act (ADA), a covered employer is obligated to provide reasonable accommodations to “qualified” disabled individuals who can, simply put, do the job. The ADA is applied on a case-by-case basis, and remains complex. That being said, where a disabled employee can perform the essential functions of their job, an employer is obligated by the ADA to provide that person with reasonable help. This help is an “accommodation.” Accommodations are required by the ADA where reasonable. Private sector employers are obligated to engage in an “interactive process” to discuss accommodation proposals, under Department of Labor regulations. 29 CFR 1630.2(o)(3). Employees seeking ADA accommodations should request it. At the meeting, he or she should come prepared. Bring facts addressing points one through four below. Qualified disabled employees under the ADA are in the best position to advocate for telecommuting if:
1) The employer permits telework as part of routine business practice;
2) The specific position involved has been done through telework before;
3) The employee works alone and independently when on-site or off-site;
4) The employee is a proven performer;
5) No important job duty is hindered by telework.The workplace can better fulfill the aspirations of the ADA, Congress, and qualified disabled citizens by embracing telework. In today’s highly networked environment, telecommuting is a commonsense accommodation under the ADA.
