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Workplace RERC


State of the Science Conference
September 15-16, 2005

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A Framework for Providing Teleworking as a Reasonable Accommodation RERC on Workplace Accommodations

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  1. A Framework for Providing Teleworking as a Reasonable Accommodation RERC on Workplace Accommodations
  2. OBJECTIVES
  3. Confusion: Split in the Circuit Courts
  4. Qualified Individuals with Disabilities
  5. Tonya's Situation
  6. Jacob's Situation
  7. Jacob's Situation
  8. Jacob's Situation
  9. Jacob's Reaction
  10. The Neurological Exam
  11. Jacob's Reaction
  12. Wear Insulated Clothing
  13. Is Teleworking Reasonable?
  14. Guiding Principles
  15. Guiding Principle 1: Civil Rights Laws are Unique
  16. Guiding Principle 1: Civil Rights Laws are Unique - 1.1: Emotionalism
  17. Guiding Principle 1: Civil Rights Laws are Unique

Slide 1 of 34

A Framework for Providing Teleworking as a Reasonable Accommodation
RERC on Workplace Accommodations

September 16, 2005

Presented by Shelley Kaplan, MSccc

Developed by CATEA’s Southeast DBTAC with funding from NIDRR under grant #H133D010207
© 2005 All Rights Reserved, Georgia Tech Research Corporation, Atlanta, GA.


Slide 2 of 34

OBJECTIVES


Slide 3 of 34

Confusion: Split in the Circuit Courts

Courts differ regarding whether "work-at-home" is reasonable.

Compare Langon v. Department of Health and Human Servs., 959 F.2d 1053, 1060, 2 AD Cas. (BNA) 152, 159 (D.C. Cir. 1992); Anzalone v. Allstate Insurance Co., 5 AD Cas. (BNA) 455, 458 (E.D. La. 1995); Carr v. Reno, 23 F.3d 525, 530, 3 AD Cas. (BNA) 434, 437-38 (D.D.C. 1994), with Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 545, 3 AD Cas. (BNA) 1636, 1640 (7th Cir. 1995).

Courts that have rejected working at home as a reasonable accommodation focus on evidence that personal contact, interaction, and coordination are needed for a specific position.
See, e.g., Whillock v. Delta Air Lines, 926 F. Supp. 1555, 1564, 5 AD Cas. (BNA) 1027 (N.D. Ga. 1995), aff'd, 86 F.3d 1171, 7 AD Cas. (BNA) 1267 (11th Cir. 1996);
Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227-28, 3 AD Cas. (BNA) 449, 457-58 (S.D.N.Y. 1994), aff'd, 60 F.3d 811, 6 AD Cas. (BNA) 576 (2d Cir. 1995).

Speaker Notes: No court denies teleworking as a reasonable accommodation, but almost all have rejected it!


Slide 4 of 34

Qualified Individuals with Disabilities

  • Jacob - degenerative, progressive neuromuscular condition
  • Tonya - psychiatric disability characterized by periods of extreme anxiety that sometimes make it difficult for her to leave her home or to function in an office environment
  • Amanda - physical condition characterized by intermittent flare-ups of one-to-three days duration
  • Maria - physical disability that is essentially stable

    Speaker Notes:

  • All 4 given reasonable accommodation
  • Only Jacob and Tonya have positions that might allow them to telecommute as necessary
  • Amanda & Maria’s EF require them to be onsite daily; but provided with RA (ergonomic chair, telephone headset, reserved parking spaces; generous leave policy to occasionally work at home—reports, newsletter)
  • Tonya/Jacob—both requested; one straightforward, the other complicated by a variety of different factors

  • Slide 5 of 34

    Tonya’s Situation

  • Writer / editor
  • Speaker Notes:
  • Straightforward and relatively simple
  • Medication ameliorated depression; anxiety more difficult to regulate
  • Flexible schedule to arrive and leave later, and work from home as needed (due to phobia in crowds)
  • Employer offered solutions
  • Everyone accustomed to working at a distance from start of her employment

  • Slide 6 of 34

    Jacob’s Situation

  • Training Manager / Information Specialist
  • Diagnosis: Spinal Muscular Atrophy
  • Symptoms
  • Reasonable Accommodations
  • Speaker Notes:

  • Complicated by a variety of different factors
  • Sufficient for 1st 3 years; then disability progressed; intolerance to fluctuating weather increased

  • Slide 7 of 34

    Jacob’s Situation


    Slide 8 of 34

    Jacob’s Situation


    Slide 9 of 34

    Jacob’s Reaction

    I fail to see which essential function I am unable to perform by working from home. Missing out on the "office experience" does not in my eyes constitute an essential function of my position, particularly when other staff with similar duties (e.g., preparation of documents, providing TA, participating in staff meetings, etc) are currently and in the past working offsite, establishing that this is a common practice.


    Slide 10 of 34

    The Neurological Exam


    Slide 11 of 34

    Jacob’s Reaction

    I am at a loss as to how you all expect me to get to a doctor in cold temps when I can't even get to the office. I can't drive my chair, can't move my arms, and my reactions while crossing traffic are significantly diminished. This to me borders on unreasonable.


    Slide 12 of 34

    Wear Insulated Clothing

  • Further restrict his limited movement
  • Agreed to wear insulated socks and shoes (as opposed to usual slippers) as these didn’t negatively impact his maneuverability

  • Slide 13 of 34

    Is Teleworking Reasonable?

  • Is Jacob’s request reasonable?
  • Does teleworking for 6 consecutive months cause undue hardship?
  • How does teleworking impact Jacob’s performance?
  • How can employer and employee reach a mutually acceptable solution?

  • Slide 14 of 34

    Guiding Principles

  • Civil Rights Laws are Unique
  • Necessary Components for Change

  • Slide 15 of 34

    Guiding Principle 1: Civil Rights Laws are Unique

    1.1 Emotionalism

    Speaker Notes:

  • PWD: rights denied; shame w/disclosure
  • Employer: do I have to? Won’t get work done; miss opportunities
  • Co-workers: not fair; shirking responsibilities

  • Slide 16 of 34

    Guiding Principle 1: Civil Rights Laws are Unique - 1.1: Emotionalism

    Speaker Notes:

  • Necessary to understand where the other is coming from; what is motivating their reaction / response
  • Requires interaction to then be understanding and compassionate
  • Right frame of mind to understand each others’ needs

  • Slide 17 of 34

    Guiding Principle 1: Civil Rights Laws are Unique

    1.2 Balance & Compromise

    Speaker Notes:

  • Neither side has the upper hand
  • Solution must be mutually beneficial and viewed as a win-win for all
  • Process of negotiation


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