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The flexible arrangements we describe as "telework" are governed by the telework laws, i.e., Public Law 106-346, Â§ 359 (2000); Public Law 108-199, Division B, Â§ 627 (2004); Public Law 108-447, Division B, Â§ 622 (2004); and, most recently, Public Law 111-292 (the Telework Enhancement Act of 2010). Although an agency with a robust, well-functioning telework policy may find that such a policy also enhances the agency's ability to grant reasonable accommodations that work well for the agency and the persons with disabilities who request them alike, it is important that requests to telework be analyzed and evaluated under their appropriate scheme, i.e., the telework laws and that requests for reasonable accommodations be analyzed and evaluated under the statutory framework that applies to them.
Reasonable accommodations are governed by Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. Â§ 791 et seq., which was made applicable to Federal employees pursuant to the Americans with Disabilities Act. The Rehabilitation Act requires Federal employers to provide requested "reasonable accommodations" to employees with disabilities, unless to do so would cause an "undue hardship." The determination as to whether an employee may be granted the accommodation requested should be made through a flexible "interactive process" between the employer and the employee. Executive Order 13164, Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation, requires all Federal agencies to develop a Reasonable Accommodation Policy. Therefore, agencies should refer to their Reasonable Accommodation Policy when considering reasonable accommodation requests. For example, depending upon the facts of a particular accommodation request, an agency that might have determined that a particular position should be ineligible for telework, might be required nevertheless to permit an employee with a disability within the meaning of the Rehabilitation Act to work from home to some degree. For more information on reasonable accommodation and the interactive process, see The U.S. Equal Employment Opportunity Commission's (EEOC) Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, at http://www.eeoc.gov/policy/docs/accommodation.html. The EEOC has also provided guidance that focuses more specifically on the use of work from home as a reasonable accommodation in some circumstances. See the Equal Employment Opportunity Commission (EEOC) Guidance on Work At Home/Telework as a Reasonable Accommodation, at www.eeoc.gov/facts/telework.html, for more information.
It is important to distinguish between ordinary requests to telework and requests from persons with disabilities for reasonable accommodations and to know which is being requested in any given situation before attempting to analyze the request. If there is any ambiguity about what is being requested, managers and supervisors should clarify that ambiguity at the outset. It is often very fruitful for agency managers and supervisors to consult with the agency's reasonable accommodation manager and/or the agency's counsel as part of the interactive process established by the Rehabilitation Act, in order to fully understand managers' and supervisors' responsibilities under the law
The Department of Defense's Computer/Electronic Accommodations Program (CAP) supports agency reasonable accommodation processes by providing services and accommodations for employees with disabilities who work from home as a form of reasonable accommodation.
CAP's support includes evaluating the needs of employees with disabilities and purchasing the assistive devices and technology necessary to effectively complete their duties, whether on site or under a reasonable accommodation to work from home. This also serves as a retention strategy and reduces disability retirement costs and actions. For more information, contact CAP at www.tricare.mil/cap.
In addition, the Government-funded Job Accommodation Network (JAN) is a free service that offers employers and individuals ideas about effective accommodations. The counselors perform individualized searches for workplace accommodations based on a job's functional requirements, the functional limitations of the individual, environmental factors, and other pertinent information. JAN can be reached at 1-800-526-7234 (voice or TDD); or at www.jan.wvu.edu/soar