The Telework Enhancement Act included specific language that required OPM to provide policy and policy guidance for telework in the area of accommodations for employees with disabilities. Federal agencies are required by law to provide reasonable accommodations to qualified employees with disabilities. The regulations implementing the law in this area are issued by the U. S. Equal Employment Opportunity Commission (EEOC).
What is a Reasonable Accommodation?
A reasonable accommodation is defined as any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodations may include, but are not limited to: (a) making existing facilities readily accessible to individuals with disabilities; (b) job restructuring, modification of work schedules or place of work, extended leave, telework, reassignment to a vacant position; and (c) acquisition or modification of equipment or devices, including computer software and hardware, appropriate adjustments or modifications of examinations, training materials or policies, the provision of qualified readers and/or interpreters and other similar accommodations.
Telework & Reasonable Accommodations
Many employers have discovered the benefits of allowing employees to work at home through telework (also known as telecommuting) programs. Telework has allowed employers to attract and retain valuable workers by boosting employee morale and productivity. Technological advancements have also helped increase telework options by allowing employees to work from home or another approved alternate location. These advancements can also result in expanded options and opportunities for persons with disabilities. Not all persons with disabilities need - or want - to work at home, and not all jobs can be performed at home. Allowing an employee to work at home may be a reasonable accommodation where the person's disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense. Although an agency with a robust, well-functioning telework policy may find that such a policy enhances the agency’s ability to grant requests to telework as a form of reasonable accommodation for qualified persons with disabilities, it is important to remember that such requests are analyzed and evaluated under a different statutory authority than the agency telework policy.
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Rehabilitation Act of 1973
The Rehabilitation Act of 1973, as amended, was made applicable to Federal employees pursuant to the Americans with Disabilities Act, and laid the groundwork for Federal agencies' responsibilities relative to reasonable accommodations. This law prohibits Federal employers from discriminating against qualified individuals with disabilities and requires them to take affirmative action to employ and advance in employment qualified individuals with disabilities. It also requires them to provide reasonable accommodations to applicants and employees with disabilities unless doing so would cause undue hardship.
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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 and not their telework policy when considering reasonable accommodation requests. For example, depending upon the facts of a particular accommodation request, an employee who may have been deemed ‘ineligible’ to participate in telework under the agency’s telework program, may actually be entitled to telework as a form of reasonable accommodation for a qualifying disability within the meaning of the Rehabilitation Act. EEOC issued Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation to set forth some background information on the obligation to provide reasonable accommodation and the standards of the Rehabilitation Act. It then addresses each of the requirements of the Order.
For more information on reasonable accommodation and the interactive process, see the EEOC Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act. The EEOC has also provided Work At Home/Telework as a Reasonable Accommodation guidance that focuses more specifically on the use of work from home as a reasonable accommodation in some circumstances.
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Agency & Manager Responsibilities
Agencies and managers should distinguish between ordinary requests to telework under the agency telework program and requests from persons with disabilities for reasonable accommodations. The Telework Enhancement Act requires Federal agencies to establish and implement telework programs that authorize their employees to telework, but it does not provide employees with a legal right or entitlement to telework. The Rehabilitation Act, on the other hand, requires Federal employers to provide “reasonable accommodations” to employees with qualifying disabilities unless to do so would cause an “undue hardship”. If there is any ambiguity about what is being requested, managers and supervisors should clarify that ambiguity at the outset. It is often very advantageous 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.
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Additional Legislative Changes
It should be noted that the Americans with Disabilities Act (ADA) was amended, effective January 1, 2009, to broaden the definitions of disability to make it easier for individuals to be covered under the ADA/ADAAA. For more information about those changes, see the EEOC's Regulations to Implement the Equal Employment Provisions of the American Disabilities Act, as Amended, , Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, and the Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.
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Computer/Electronic Accommodations Program
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 provides assistive technology and services free of charge to more than 50 other Federal agencies through partnership agreements. In addition to conducting needs assessments to identify the most appropriate solution for each individual requesting accommodation (whether on site or under a reasonable accommodation to work from home), CAP procures and delivers the accommodation and covers the costs of installation, integration and user training. This also serves as a retention strategy and reduces disability retirement costs and actions.
Office of Disability Employment Policy
The Office of Disability Employment Policy (ODEP) was authorized by Congress to recognize the need for a national policy to ensure that people with disabilities are fully integrated into the 21st Century workforce. ODEP's mission is to develop and influence policies and practices that increase the number and quality of employment opportunities for people with disabilities. To fulfill this mission, ODEP promotes the adoption and implementation of ODEP policy strategies and effective practices that will impact the employment of people with disabilities. ODEP's approach is to drive systems and practice changes by disseminating ODEP policy strategies and effective practices, sharing information, and providing technical assistance to government agencies, service providers and non-governmental entities, as well as public and private employers. For more information, please see Accommodations Resources for Federal Managers and Employees.
Job Accommodation Network
Additionally, ODEP manages the Job Accommodation Network (JAN). 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.
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