Telework Options for Employees with Disabilities in the 21st Century
Rachel A. Stanley *
Michael J. Messinger
May 2007
Prepared for:
Shelley Kaplan
Director
Southeast Disability and Business Technical Assistance Center
http://www.sedbtac.org/
*
Ms. Stanley is a 2007 graduate of the Syracuse University College of Law. Mr. Messinger is a 2008 J.D. candidate
at Syracuse University. Both are working 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 Syracuse University; 900 S. Crouse
Ave., Crouse-Hinds Hall, Suite 300, Syracuse, New York 13244; email – wmyhill@syr.edu; phone – (315) 4431367. For additional information on related law and policy issues, see http://bbi.syr.edu.
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I. 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. In this brief, first we provide an overview of recent telework policies
and practices. Second, we analyze teleworking 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 teleworking as a reasonable
accommodation.
II. 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.7 The jobs most amenable to telework are information-based
with minimal requirements of face-to-face contact.8 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.9 According to Gil Gordon, an expert on
Teleworking, employers save 63% of absenteeism costs per teleworker per year which translates
to substantial savings for the employer since absenteeism costs $660 per employee per year.
Critics suggest that telework will increase worker’s compensation claims and otherwise
cost employer losses. 10 Telework, however, decreases hiring and training costs in part by
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
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, http://www.telcoa.org/id33.htm (last visited May 18, 2007).
8
Gil Gordon Associates, supra note 7.
9
Id.
10
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.
1
2
increasing loyalty.11 Moreover, teleworkers often perform “more and better work, are meeting
their deadlines better, and are better able to juggle multiple priorities and deadlines” than their
counterparts working in the office.12 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.”13
In a Job Accommodation Network (JAN) study on the frequency of telework as a
reasonable accommodation, 57 survey respondents (5%) indicated they seriously considered
telework as an accommodation after speaking with a JAN consultant.14 Of those, about half (30,
or 56%) had implemented the accommodation at the time of the survey, while 13 (25%)
eventually rejected it.15 Ten respondents awaited a decision on their accommodation request at
the time of the survey.16
Overall, telecommuting is an increasingly useful and requested way to work. Not only
does it help employers and employees in general, but it is likely the workforce will include more
people with disabilities if telework reaches the mainstream.
III. Telework as a Reasonable Accommodation When Challenged in a Court of Law
Accurate determinations of the scope of successful teleworking as a reasonable
accommodation are not available. Studies of ADA implementation suggest that far more
accommodations are implemented than litigated.17 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) has the statutory authority to
enforce the employment provisions (Title I) of the ADA, defining ‘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.”18 EEOC
regulations further indicate 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.19 Given these
criteria, while a number of jobs may require regular physical presence (e.g., shift supervisor or
11
Telework Coalition, supra note 7.
Id.
13
Id.
14
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).
15
Id. The survey results do not indicate if it was the employee or the employer who eventually rejected telework as a
reasonable accommodation.
16
Id. Information on the remaining 4% of those surveyed was unavailable.
17
Peter Blanck, Eve Hill, Charles D. Siegel, & Michael Waterstone, Disability Civil Rights Law and Policy: Cases
and Materials (Thomson/West, 2006).
18
29 C.F.R. § 1630.2(n) (2007).
19
Id. § 1630.2(n)(2)(i)-(iii).
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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.20 Courts frequently conduct an individualized inquiry applying these additional
considerations.
For example, in Knutson v. Medtronic, Inc.,21 the plaintiff’s rotator cuff, back, shoulder,
and knee limitations hindered her ability to work full-time.22 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.23 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.24 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.25 The employer argued that the plaintiff was not an otherwise
qualified individual with a disability because she could not meet the attendance requirements.26
The court found that the plaintiff was not a qualified individual because regular and reliable
attendance was an essential job function that she could not perform.27
Similarly, in Phillips v. Farmers Insurance Exchange,28 the plaintiff’s job required “in
the field” driving to accident sites.29 After working for Farmers Insurance for 5 years with
consistently poor performance reports, the plaintiff began experiencing seizures and was unable
to drive.30 The employer allowed the plaintiff to do only those functions she was able and
permitted to do, and was allowed to seek assistance with other functions from her co-workers.31
Her seizures continued for several months and the plaintiff requested she not be required to
drive.32 Her employer noted that she was not completing the functions she was able and
permitted to do, and terminated her employment.33 Upon hearing the plaintiff’s ADA claim of
discrimination based on her disability,34 the court found that one of the essential job functions of
20
Id. § 1630.2(n)(3)(i)-(vii).
No. Civ. No. 05-180, 2006 WL 1851142 (D. Minn., Jul. 3, 2006).
22
Id. at *1.
23
Id. at *3.
24
Id. at *2.
25
Id. at *5.
26
Id. at *7.
27
Id.; see also Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999).
28
No. Civ. 3:04-CV-1113N; 2006 WL 888095 (N.D. Tex., Feb. 9, 2006).
29
Id. at *1.
30
Id.
31
Id.
32
Id.
33
Id.
34
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, however, the plaintiff likely claimed
21
4
the job was driving, thus telecommuting would not allow her to complete the essential job
functions.35
In Cripe v. Mineta,36 however, the plaintiff had anxiety attacks and was diagnosed with
HIV.37 He worked from home two days a week before his employer created a new policy
prohibiting telework.38 The plaintiff requested a continuance to work from home, but the
employer denied the request without proof of the plaintiff’s condition.39 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, though the court found there was a genuine issue of material fact as
to whether the plaintiff was disabled, and whether the employer accommodated the plaintiff.40
In Woodruff v. U.S. Department of Transportation, 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.41 Initially, plaintiff’s manager permitted Woodruff to perform
his supervisory duties through telework.42 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.”43 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.44 The court 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.45 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.”46
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
she was not provided a reasonable accommodation for her disability and that her employment termination was a
retaliatory discharge.
35
Id.
36
No. Civ.A.03-2206 2006 WL 1805728 (D.D.C., Jun. 29, 2006).
37
Id. at *1.
38
Id. The opinion does not indicate whether the employer’s new policy prohibiting telework was questioned by
employees.
39
Id.
40
Id. at *4.
41
Id.
42
Id.
43
Id. at 524
44
Id. at 528
45
Id.
46
Id.
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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 were not given poor performance reports and whose job functions were
amenable to telework.
Technology continues to enhance the lives of many persons with disabilities (e.g., voice
recognition software).47 For instance, a progressive form of telework may have benefited both
employee and employer in Johnson v. Trustees of Durham Technical Community College.48 The
plaintiff taught literacy skills to inmates at the Durham County Jail Annex.49 As a result of
childhood polio, plaintiff used crutches and at times a wheelchair to access the Jail Annex.50 She
was considered a part-time employee, and was employed by contracts of varying length
depending on the course taught.51 During a two and a half year period, she entered into eight
employment contracts with her employer.52 After breaking her leg while accessing the Annex,
the plaintiff’s supervisor suggested that she teach at the main campus, which would provide the
plaintiff with improved physical access.53 The plaintiff rejected the offer because the job
involved teaching children with disabilities, with whom she had no experience.54 Her employer
subsequently refused to extend her employment contract.55 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.56 Widely available web conferencing
applications, nonetheless, could allow her to continue teaching literacy skills to the inmates as a
reasonable accommodation.57
IV. Recommendations
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 to both employer and employee.58 He further suggests providing examples of other
employees within the company who successfully telecommute, and encourages communication
47
William N. Myhill, Voice Recognition Software, In Encyclopedia of American Disability History (Susan Burch
ed., Facts On File, Inc.) (forthcoming 2007).
48
535 S.E.2d 357 (N.C. 2000).
49
Id. at 359.
50
Id.
51
Id.
52
Id.
53
Id. at 360.
54
Id.
55
Id.
56
Id.
57
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).
58
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.
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with the successful employee.59 How well an employee works in the office is an indicator of how
successful s/he will telework.60
59
60
Id.
Gil Gordon Associates, supra note 10.
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