Good day, ladies and gentlemen, and welcome to the work at home altered work schedules as an accommodation conference call. At this time all participants are in a listen-only mode. Later we will conduct a Question and Answer Session, and instructions will follow at that time. If anyone should require audio assistance during the conference, please press star 0 to reach an operator. I would now like to turn the call over to Peter Berg.
Thank you very much, Operator, and welcome, everyone. Hopefully it is a little warmer in the part of the country where you are than where I am located, but welcome to the 2008/2009 ADA audio conference series. The audio conference series is a collaboration between the ten, between the network of ten regional ADA centers, also known as Disability Business Technical Assistance Centers or DBTACs. You can always contact the ADA center that serves your state by dialing 1-800-949-4232. Today''s session is being recorded, and audio archived as well as a written text transcript will be available on the audio conference website which is www.ada-audio.org in ten to fourteen business days following today''s session. As we have been doing for the past few years, individuals will be participating with us today via telephone, also audio streaming through computers, and individuals receiving real-time text of today''s session, and all participants have opportunities to ask questions when we get to the portion of the presentation. Today''s session begins a four-part employment series within the audio conference series. Today''s dealing with work at home altered work schedules as an accommodation, and we have as our primary speaker today Robin Jones, many of you know Robin as the usually moderating today''s sessions, but she is on the other side today. Robin is the Director and Primary Investigator for the Region 5 Great Lakes ADA Center which is located at the University of Illinois-Chicago. Robin is also an instructor within the Department of Disability and Human Development at the University. Robin''s background, in educational background is in the area of public administration and occupational therapy. Robin has extensive expertise in community participation of people with disabilities and transportation employment and access to their community. Robin also has provided extensive consultation and training to businesses and government agencies regarding their obligations under the Americans with Disabilities Act. Robin has been the director of the ADA Center at Great Lakes since its inception over eighteen years ago. Also joining us today will be Sharon Rennert. Sharon is a frequent guest on the audio conference series. She will be here to participate primarily in our question and answer portion of the presentation. For those of you who may not be familiar with Sharon, Sharon is a Senior Attorney Adviser within the ADA Division of the Equal Employment Opportunity Commission, EEOC. The EEOC being the federal agency charged with enforcement responsibilities under the Americans with Disabilities Act. Sharon has participated in the creation of all of the EEOC''s guidance and interpretation materials on the Americans with Disabilities Act with her expertise being in the area of reasonable accommodation but, obviously quite knowledgeable on all areas and aspects of the law, so we are pleased to have both of these individuals with us today, and at this point I will turn it over to Robin to begin today''s presentation.
Great. And, thank you very much, Peter, and I am happy that everyone was able to join us today irregardless of some of the strange weather things happening across the country. As was identified and as you know from signing up for this particular program, our discussions today are going to be around the issues and the concepts of work at home or telecommuting/teleworking, and we will talk a little bit about the definitions of those as well as the discussion of altered work schedules as an accommodation and as Peter noted this is the first of four that are sessions in a row here that will be focusing on various aspects of employment. I will be talking a little bit about the definition of and defining telework and telecommuting, and hopefully everybody has the materials that were associated with this program which includes a copy of the power point presentation as well as a copy of the EEOC fact sheet on telework and some additional resource documents that address these particular issues as a follow-up to this information that you are going to be receiving today during the session. I am going to talk about telework as an accommodation issue itself, just a brief mention of some of the directions that the case law has taken, this is not a focus on all of the decisions or anything out there, but to give some of the ways that the courts have looked at this particular issue, talk a little bit about some of the case studies and best practices that have been identified related to telework as an accommodation and then we will also get into a discussion of altered work schedules before we kick off an opportunity for you in the audience to ask questions and hopefully receive some answers from myself and Sharon Rennert. And Sharon will, I know, feel free to jump in any other time during the session as well that she feels is necessary and appropriate to with her expertise and her knowledge in this area. Because I believe, Sharon, and you can correct me if I am wrong, you wrote the fact sheet on telework, is that correct.
That is correct.
That is what I thought
Don''t let that put pressure on you.
No. It is good to always have the person who obviously had to think through how the EEOC would look at these issues and approach this particular issue. So when we look at the whole concept of telecommuting and telework from a definitional perspective, we are obviously talking about basically terminologies that are synonymous, and really comes from or the roots of it are the use of telecommunication as a means of conducting or working outside your traditional office or workplace environment. This could be done at home, and also there are and there has been a practice nationally where actually telecommute centers have been created, so it may not necessarily be that that an individual may be working out of their own home, but they may go to a office or a center that may be rented shared space, shared resources, etcetera, by an entity or company that is not their traditional workplace but is where an individual can have access to the necessary tools and equipment that they may need to do their job, just it would not be within quote, unquote your traditional four walls of the corporate office somewhere, so, for example, you might have a suburban office located, you know, several miles from a center of much residence and such residency areas where they may have identified that because they look at their workforce that they can actually work by having a telecommuting center that they have established some place where they have rented and they have people come to that center and do the work versus the traditional corporate office. Typically where you talk about using equipment or various types of equipment could be conducted by LAN phone or a mobile phone using the computer, internet, wireless technologies, could also include use of videoconferencing, and traditional modes of dissemination of information or communication through fax, e-mail, or instant messaging, so I think that you know, when you think about the terminologies and whether those things come from, it does come from that idea that I think connect my workplace in more nontraditional way to do things. Some of the jobs that we think of or we see as you look out in whether it is in advertisements and newspapers or you look out at some of the sites that talk about telecommuting which there is a plethora of sites on the internet that either are looking to recruit or helping people set up telecommute opportunities or whatever it might be, but some of the jobs that you might often see with the telecommuting or associated with telecommuting, some you may think of might fit within your box and some of it might be outside your box, and I think that telecommuting and telework does require that people sometimes get out of their traditional hat, or take off their traditional hat or their traditional box about what is a work environment and what constitutes a traditional work environment and think about jobs and activities that could and might be carried out outside of your traditional work environment, so things like being an accountant, an attorney, an architect, an auditor, a central file clerk, a clerk, a CAD engineer, a psychologist, a civil engineer, a clerk typist, someone providing Customer Service, an economist, a financial analyst, a graphic artist, an industrial engineer, an insurance broker, someone who is a journalist and does writing, a market analyst, a office manager, someone who does purchasing, a radio newscaster, a realtor, a statistician, stockbroker, technical writer. I mean there is just so many different jobs that you know, could lend themselves in what someone will say, well how can you do that with some of those jobs? Wouldn''t you have to be in the office? Wouldn''t you have to interact with the public and such? I think it important that, when we look at this issue of telework that, you don''t always think of it in assigning it to and saying that it is perfect or it is going to work for every job. I think it is the idea of the fact that it could work for some jobs, and it might not work for other jobs, but the issue is more that it is on the table as a potential consideration as an accommodation and employers should and need to be aware of the fact that, as with many different types of accommodations that, their immediate response or their immediate reaction to a request or the exploration of telework or telecommuting as an accommodation should not be no, but it should be as all accommodations should be a case by case analysis, taking into consideration what is the job, what are the skills necessary to do that job, what are the essential functions of that job and how can that job be carried out or how should it be carried out and would telecommuting or telework be a potential option. I always try to think of and keep myself open to the fact that accommodations can be almost anything, whether it is reasonable is where you start to pare it down to that issue of case by case analysis. Based on the job and the person and the skills and the times even for a particular company. What might be reasonable at one time may not be reasonable at another just because of how the operations of the organization may have changed or shifted based on business necessity. Just to make sure also that we are all on the same page and understand where this does fit in to the whole context and concept of reasonable accommodation, so I want to take a minute to make sure that we look at the fundamentals of reasonable accommodation, keeping in mind again when we are talking about someone who may be exploring or approaching an employer about a telecommuting or telework as an accommodation option the individual must be qualified for the job that they either desire to hold or currently hold, and that means they must be able to perform the essential functions of that job with or without a reasonable accommodation. Keeping in mind that employers are never required to remove an essential function of a job in order to accommodate an individual''s telework or work at home schedule, so again what becomes critical there is that the understanding that are we looking at the essential functions of the job as part of our analysis and discussion in this context. Understanding as we do with all scenarios when we look at marginal functions where someone may have a marginal function of their job which may not lend itself to a telecommuting situation, but marginal functions could be as a reasonable accommodation reassigned to another employee and functions that could be accomplished through a telecommute option or telework option could be assigned to the individual through a job restructuring process, again this would be something that would be done on a case by case basis, not looking to say, well, if I take that function out, that person will not be doing as much work as other employees would be doing, that would not be the intent or the intention. The intention would be of removing something that could not be accommodated in a telework or telecommute situation and reassigning other tasks, marginal functions, that could be so that you still had an employee who was you know quote unquote pulling their weight or doing a full day''s work or a full job, as would be defined by the employer. Also, keep in mind, as we all know and should know already is that an employer is not required to provide an effective -- is required to provide an effective accommodation, not necessarily one''s preferred accommodation, so while an employer may get a request for telework or telecommuting as a reasonable accommodation, they should be open and should be aware that exploration of all potential options for addressing the limitations that may need to be accommodated in this particular situation with an employee would be on the table, so that while an individual may request telework or telecommuting, an employer should and does have the right to look at all available potential accommodations, again going back to the fact that whatever accommodation they may provide it should be an effective accommodation, so an individual may identify work at home, but there may be an alternative, so, for example, one of the reasons or the limitations that someone might experience that may cause them or believe them to think or ask for a telecommute or telework accommodation may be that that person had drowsiness, or frequent periods by which they become drowsy, and from being work at home, they would know they could potentially take a break and lay down and take a short nap or something of that nature. Well, could that same type of situation be accommodated in the workplace? Is there the option for that individual to do that? That could be again an exploration so that while that particular limitation becomes the focus of why telework is requested as a reasonable accommodation, that there may be other ways for the employer to accommodate that particular issues or situation. Also, accommodations are not included but are not limited to things like modifying policies and procedures, you know, modifying eligibility requirements, obviously comes into play here, when we look at telework and telecommuting, as I reviewed and looked at policies and procedures related to telework or telecommuting, I will sometimes see policies that are written with language that will say individuals are not eligible for telework or telecommuting until they have worked at least twelve months for the employer and had at least one satisfactory performance review. Or the individual is not eligible for telework unless they are, you know, a senior employee or something of that nature. It may be necessary that an employer look at, and look at those eligibility requirements and potentially modify those requirements to allow or to allow telecommuting or telework as a potential accommodation for someone who might not have worked for you for twelve months. Again, not asking an employer to lower standards or to take a task or to take a stance that would be contrary to business operations or have a potential for a negative impact on the operations of the organization, but one would have to explore and look at why do you have that policy in place? Obviously it is legitimate that an employer may be looking at whether or not an employee has a particular attribute that makes it successful for them to be a teleworker/telecommuter, demonstrated skills in a particular area, be a self starter, be somebody who has already demonstrated they''re able to work independently that demonstrates that they are able to meet timeframes and timelines adequately and such, which would obviously be some of the concerns an employer might have around whether or not someone could or would be successful as a telecommuter or teleworker. But this again, are there other ways that as an employer that I might be able to measure the issues other than the timeframe that you established through that policy. Are there other methods or modes that we might be able to determine whether or not this employee would meet that and would be qualified or would be able to perform their job in a telecommuting situation? Again, we also need to think about and keep in mind that modifying with when things are done during the day or the week may be another modification that we would need to make. Maybe we always do things on Mondays or Wednesdays or Fridays, and that you have someone who might be telecommuting two days a week, and one of the days that they''re telecommuting might fall on one of those days on that a particular activity or function is one that they need to be present for or, is it possible for us to change or move when we do that activity to one of the days that the person may be in the office versus telecommuting from home? Again, thinking about the fact that accommodations may include those types of changes, as well as to further address the needs or the barriers that an employer may seek to a potential telecommuter or teleworking situation. Modifying where or how a job task or series of jobs are performed, again, we get back to that traditional context of how or where a job is done, it is done in the office, is it done at your desk, can it be done, modifying so that it could be done from home or from a telecommuting center or other environment. Can things be done by phone versus face-to-face? Can things be done by e-mail versus telephone? Are there other ways that business can be done, again there is the difference between how we have always done it or how it has always been done to being a little bit broader and open when looking at things as potential accommodations, could we make those modifications to how something is done or where something is done as part of the analysis of that being an accommodation. Keep in mind and remember that the interactive process is necessary when we are engaging in any discussion of reasonable accommodation. It is critical that the employer and the employee dialog and understand what the limitations are, what the request of the accommodations is and engage in a interactive dialog around the potential solutions including the requested accommodations but also other options that might be available, the final decision of what accommodation being provided does come from the employer, but the process of getting to that point and understanding the need and the various types of accommodations that might address the limitations that the individual has as it relates to accomplishing the job task should needs to be an interactive process involving both parties. Also keep in mind that sometimes the need for accommodations don''t arise until you are engaged in some type of a disciplinary process or there has been a breakdown in performance by the employee, so things may not have even been identified up to this point as potential accommodations, but we know and should keep in mind that I may need to engage in the disciplinary -- I am sorry, in the reasonable accommodation process during the disciplinary process itself, and one of those things that may come up during that process is the potential need for telecommute or telework, so the issue of reasonable accommodation can come up at any time during the employment process including even during the disciplinary process. Remember that as a defense employers have undue hardship, and they are not required to provide an accommodation, that would result in an undue hardship, it could be a financial hardship, the cost of providing the equipment or the services to the individual, as well as an administrative hardship, there might be an argument to be made that the impact on supervision or the impact on other organizational operations may be effected, so some of the basics of reasonable accommodations so that we''re all really on the same page when we think about these in the context of our discussions today of telework and telecommuting. Any questions at this point about what I have said up to this point at all before we go on?
Operator, if you want to step in and give folks instructions on how they can ask questions, please.
Ladies and gentlemen, if you have a question at this time, please press the 1 key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. Again if you have a question please press the 1 key now.
And Sharon, if you have anything you would like to say at this point, that would be time for you as well.
There is nothing I have to add.
Okay, go ahead
The first question.
Go ahead.
Good afternoon. How do most employers with whom you have come in contact address the issue of equipment? Do they issue the equipment from the employer or do they allow the employer, the employee, to supply his or her own equipment? Are they standard desktops?
Yeah. Okay. I have seen it in many different ways, and it really is dependent upon the employer and the employer''s circumstances and situations and look at policies and procedures that the employer may already have in place, and again looking at where reasonable accommodation also may be necessary in the situation, so typically in most situations that I am familiar with the employer provides all necessary equipment, and all necessary connections. So, for example, an individual you know may need a computer, may need a fax, there may be a combined computer fax with today''s technology, may need an internet connection or let''s say for example I may have a home internet connection, but that internet connection is more of a slow speed, you know Im paying the minimal fee that I have for my provider locally. I am not using or getting the highest bandwidth or whatever in my home already through my connection. Typically I may need something stronger than that, and then there is a relationship or an agreement made between the employer and the employee of how that might be achieved, maybe upgrading the current or running a second line in for internet access. Telephone, again, same thing, a second line that would be specific for the business operations, providing any other additional office equipment that person may need and a copier or a video camera, or something of that nature, whatever else, it would really be a case by case circumstance by circumstance to the type of job, what was necessary for the person to use to do the job, and then how that would be need would be met in that person''s home and setting up, my typical everything down form the desk and the chair and everything, has been that the employer is going to provide that. Again, there may be a dialog and discussion between the employer and the employee related to that particular situation, but that would be case by case and left with the employer. I think the employer if they do not already have a current telecommuting policy may need to explore those issues as they engage in this as a reasonable accommodation issue. If they do have an existing telecommuting telework program that is used for a number of things, because remember, telework and telecommuting is done by a lot of people and a lot of business and entities for a lot of different reasons, not just disabilities. It is only where we are really specifically looking at it today from the context of as a potential reasonable accommodations, but many employers including the federal government have had longstanding telework or telecommute policies and procedures and so you would go back to any existing policies and procedures and practices that you might have. If reasonable accommodations would also include the provision of specific types of equipment for an individual or, for example, headset on a telephone or specific software on the computer, and such, a specific type of ergonomic chair for an individual, those would all be considerations and additional discussions that would need to be had in relationship to setting up the home environment by that employer.
If I can just interject here just to be clear about when an employer has a telework policy, an employer can set whatever requirements it wants with a general telework policy including that in order for employees to qualify for the telework or telecommuting policy, they must provide certain things at home. For example, you must have your own computer or laptop, employers free to do that, but when somebody is requesting the right to telework as a reasonable accommodations, it is at that point that an employer can''t just rely on its policy saying, well, have you to have the computer or laptop, we don''t have to provide it. It is not strictly under the telework policy. It is now being requested as a reasonable accommodation, and that is where Robin''s point that an employer now may have to as part of an interactive process talk about what equipment the employer may have to provide, but employers can also remember at this point that certainly they have to provide equipment that would enable the person to do an adequate job. You can''t expect the person to do the work you expect of them, but you haven''t given them the appropriate equipment, but that doesn''t mean have you to give them top of the line equipment either. And so if, for example, a laptop, if in the workplace people have proper computers and monitors and all of those kinds of things, but a laptop would suffice for somebody to do all their same work, and do it effectively at home, then the employer can say, no, what we''re going to provide you with is a laptop, so again that all becomes part of the interactive process, what equipment needs to be provided, it can be different from what''s in the office, but the touch stone here has to be, will this equipment enable the employee to effectively do his or her work, and if the employee already has certain kinds of equipment, that would be fine for the employer, then they can be using some of their own things that are already at home.
And again there might also be a discussion if I don''t have certain things that I might need to have added onto them or something, or again to the question of wear and tear on the equipment as well, and some issues and discussion of responsibility for that and maintaining it and maintenance and such too. I think again, as Sharon was saying that the interactive process becomes critical in making those decisions and discussions and it should be on the table and part of the overall discussion that everyone has around providing this and whether its reasonable or not for an employee. Any other questions before we move on?
Next question.
Go ahead.
Yeah, I was wondering if the employer, on a telecommuting request for accommodation, assuming that -- can you instead allow or dictate to an employee that they must use their accruals or do you reserve or first request approximately around a work schedule or altered work schedule to have every Friday off, which causes some hardships within the entity, so an employer does not want to grant that as a reasonable accommodation, but instead says to the employee that you can use your accruals which in a sense is saying, that yeah, we can do without you, but you can use your accruals and take that time that way. Is that reasonable in your estimation?
Well I think what you are talking about here is a different issue where you are starting to talk about whether or not an altered work schedule, which is what we will talk about a little later, is a reasonable accommodation, and then now what comes into the complexity of that particular issue it becomes an issue of are we talking about somebody who is taking time off as part of , you know, for a medical issue and does it trigger other things like use of Family Medical Leave Act and things of that nature, so I think that becomes more complicated discussion than when you are you just talking about somebody who may be right now talking about primarily the issue of telecommuting or teleworking, so lets say that I am going to switch your scenario around a little bit. Lets say that you have somebody who is looking at telecommuting, not as a full time but a part-time situation and has requested because of fatigue or pain or other kinds of issues that not having to travel into the office, maybe their commute increases or exacerbates some of the issues associated with their disability, and if they could you know reduce by one day a week that particular travel back and forth and such of that nature, that may be something that would be needed or necessary for that person to continue to function and do their job and so they''re requesting from the employer four days in the office one day, you know of, a work at home kind of a situation, and that scenario that again goes back to the table of the interactive process and the discussion whether or not thats reasonable and what would that constitute and how would I accommodate that as an employer and does that fit within the job functions and the job activities for that person and such, but whether or not we are talking about somebody taking working normally a 40-hour week and they are asking to go down to a 32-hour a week versus a 40-hour a week type of situation, that''s really now asking for an altered work schedule, and now that would be a whole different discussion, a whole different set of parameters and Sharon, I don''t know if you want to jump in and say anything at this point about that.
I was going to sort of hold off until we get to the altered work. I made some notes, and at that point I will pick up this question again.
Great.
I am jumping in too early. I apologize.
That is ok not a problem, not a problem at all. Any other questions or we will keep going.
We do have three more questions.
Go ahead. Unmute your phone, if have you it muted or somebody at your location. Sometimes your mute button is on.
I just turned it off.
Do you have a question? OK, why don''t we move on to the next one.
Can you hear us now?
Yep, we can. Yep. We got you.
All right. Once the accommodations have been put in, what is the timeframe from that we grant the request and finish it?
So if I understand your question correctly, you are saying once I have made the request for an accommodation what would be the timeframe from the time of requesting until it was actually granted? Is that what you''re asking?
Yes, yes.
Well, the regulations and the ADA, can you unmute your phone again? I think we are getting some feedback. Thank you. The ADA and the regulations itself would not specifically identify a timeframe of one week, two weeks, or whatever response would be specific in the statute and the law that it would be really basically the up to the employer to go through the process of identifying and engaging in the interactive process, making the decision, talking to the appropriate -- maybe there is some management or other individuals. I think the key is that the response to a request for reasonable accommodation also needs to be a reasonable timeframe response and not to drag out and to drag on. There may be, you know, timeframe specific to let''s say, for example, if you are talking about telework and work at home, there may be some time that needs to be built in to figuring out all of the associated technical aspects of setting up or making sure everything would work at home, so that might be a one-week or two-week. I can''t put a specific timeframe on that because each situation is going to be different. But an employer does have an obligation to respond to a request for reasonable accommodation, and that response should be within a reasonable period of time based on what is necessary to implement that accommodation and looking at all necessary activities and looking at in one of those policies that may need to be amended would be purchasing policies and things of that nature, but it may take a period of time and also could look at are there alternatives that we could provide while we are getting to the point of the final accommodation. For example, if it takes a period of time to put in place equipment and things of that nature, could there be alternatives that would be used in that period of time, but strictly from request to response of yes, we can or can we not provide that reasonable accommodation, there is not a specific timeframe, but it would need to be a reasonable timeframe for that employer, so dragging it on for a month or two months or whatever may not be reasonable to do that, it would be what would be necessary internally to go through that process and make that decision in a timely manner so that the individual or the employee would have every opportunity as anyone else is to perform or do their job.
Robin, if I can interject here, what I tell be it the employer or the employee is each of them should view this as the highest priority, and usually it falls more on the employer, that whoever is handling the request or if you have to pass it onto somebody else, it is obviously people are very busy, they have a lot of things to do, and it is not that a request for accommodation is the only thing on someone''s plate, but that said I think it is very important to keep this always front and center, keep it as a high priority, and always if the employer needs to do something, it needs to call someone, it needs to get some information, it needs to give out some information, really what kind of coach employers is keep that ball moving. Do what you need to do. If it is about giving it to somebody else, make sure you have done that. If it is about you need to get information, send that e-mail. Place that phone call. Let the person know this is urgent you want. Don''t just say, hey, I have a question for you, say I have an urgent question, I really would appreciate hearing back from you by the end of today. And then you if know you give people a reasonable amount of time, but like if I can think somebody could get back to me by the end of today and I haven''t heard from them, I am going to call them again tomorrow. I am not going to let three weeks go by when someone hasn''t called me. It is that kind of response that I think is important and you know and for the employee if the employee is being asked to get information like, look, we need to get information from your doctor, then I would coach an employee to, look, your doctor is busy, but please make them aware that your request isn''t going anywhere until the doctor provides this information that you really appreciate the time it is going to take, but that it would mean a great deal, that kind of thing, and again sort of checking in so that you can help move the process forward, and I think if each side in good faith is trying to do that, then hopefully we are not talking about a process that is going to take certainly months that it can move as quickly as its possible to move it, and the last point I make to employers is keep the employee informed of what you are doing. If it is the kind of request that, look, we can''t come to an answer in two days or three days, let them know what is going on. Let them know who you are consulting with. Let them know what you are waiting for, giving updates. That is very helpful because otherwise the employee doesn''t have a clue what''s going on, it could just as easily in the employee''s mind be that the employer has it in the in box and I will get to it when I get to it, and meanwhile as an employer I may be doing quite a bit, and that helps the employee to know what is involved here. It might even make the employee help in terms of getting information that the employer didn''t realize the employee might be able to help get, so always good to keep the employee informed about what''s going on.
Thank you.
Robin, do you want to hold have the folks hold the remaining questions and move on with the presentation?
I think there were a couple other questions there we can take.
There are two more questions.
Can you hear me.
Yes, we can. Thank you.
OK, my question pertains to reader services for the blind.
Reader? Can I just clarify? Reader services, reading services for the blind?
Yes. What about in a circumstance where the reader itself is off site? Does that make sense?
So you are saying as in this situation you have an accommodation that you would be providing an employee of providing them a reader, and then that the reader would actually be somebody who would be providing the reading services not sitting next to me at my desk but potentially in an off site location.
Right, is that considered telework? How is that to be approached?
So the reader, so I think what you are talking about here in the case is the accommodation is really not the person who is the reader, it is the person with the disability being accommodated through a telework situation, but and you can correct me if I am not interpreting what you are asking correctly. But what you are saying in this case you have got a reader, you have an individual who might be blind or low vision or needs a reader as an accommodation, and the employer is providing them that accommodation but the person who is providing the reading services is doing that task remotely?
Yes.
Is that what you are describing?
Yes.
Again, I think that goes back to the context of whether or not that it is an effective accommodation for someone. Would that work in all particular circumstances and situations? You know if I am in a particular position or a situation where my need for reader is things that come up suddenly and with a very short timeframe to be able to review and read the information and respond to it, having somebody who is off site to do that may not be timely and effective, but there are other circumstances and situations where I think that that could be a very effective, so I think it goes down to that issue of what is an effective accommodation and providing somebody, so, for example, we see that we have remote sign language interpretation used, remote real-time captioning used in certain circumstances, is it ideal in each circumstance? Probably not. Again, that case by case looking at what are the variables of the communication that is taking place and does that use of remote accommodation in this case a reader from remote or could be a sign language interpreter remote or real-time captioning remote, is that an effective accommodation for the employee with a disability who needs it?
Okay. Thank you.
Robin, we had a question submitted electronically through the audio conference website, and the person wanted to know how supervision would be impacted with regards to employees using telework as an accommodation?
While I think you have to go back to and it takes it back to the whole context of what is the position and the essential function of the position and how does supervision play into the position itself and the person is performing in the work site, that particular position, so if I have a highly supervised position where there is a lot of hands on feedback and supervision that is necessary for that particular position, then maybe telework is not going to work. It has to be a case by case discussion and looking at the job, looking at how supervision and what kind of supervision is needed for that particular job and how that supervision might be able to be provided, so, for example, if I have a position where typically I think it is where you have to take and pull back a little bit and say how do we provide supervision to anyone in this work site or how would this person be supervised if they were in the office? Is it because I can see what they are doing at their desk and you know thats the kind of supervision so I am providing that person a visual contact, I am viewing them at their desk or at their workstation or whatever and that is the kind of supervision that I am getting, giving that person, I mean how would that be accommodated in the situation of periodic checking in with that individual, having specific milestone times that you would check in with that individual, that was working in a telework situation, and supervision about their work and their outcome of their work so that I am reviewing product, I am reviewing the work in different stages along the way that person is performing, how could that be provided or accommodated in that again if we are talking about process versus outcome and some ways here is that are we looking at an establishing the same set of parameters and the same set of milestones or checks for the work that that person has done, doing, is there a timeframe that somebody has to produce X amount of work in a certain period of time and are they carrying it out and that is what we are calling supervision? I think it gets down to that individual''s case by case job by job situation in regards to the kind of supervision that would be needed to conduct that position and how you might need to modify how you provide that supervision for that individual, and I don''t know, Sharon, if you have some additional thoughts you want to add to that issue of supervision because I know it is one that comes up most frequently when people talk about work at home is the supervision issue.
Yes. What I would add to that is that I think it is very important for a supervisor to be very clear, very specific about supervisory issues, and as Robin said, that term can encompass quite a bit, so you don''t want to use something like just say supervision, but I think a supervisor needs to be really clear about whatever issues the supervisor thinks falls under supervision, about raising them, and then addressing them, and being as clear as possible so there are not misunderstandings on either side about what is going to happen here. I also think that in my experience and in whatever kinds of issues we put under the heading of supervision, it is supervision that is the single biggest issue that employers have in terms of being reluctant to provide telework as a reasonable accommodation, and one of the things I strongly suggest for employers, when they really don''t have sort of a clear undue hardship argument to make against telework, or, you know, no, it is not that you are the waiter or the waitress and they simply can''t telework, it just doesn''t fit the job, is trying it on a trial basis. Again, still be clear on the expectations about supervisory issues, about how work is going to be assigned, how it is going to come back into the workplace, about the how communication is going to occur, how often communication is going to occur, exactly what the work hours are, and the expectations that a manager could get a hold of the employee at any time during those agreed upon work hours, that the employee must notify the employer if there is work hours are not going to be done for any reason. You know I woke up this morning and I have the flu, I can''t work today, so Im going to call in sick just as I have to do if I was reporting to the workplace. You kind of go through all of those kinds of issues, but if you try telework on a trial basis, then you get to see whether some of the things that a supervisor can be kind of nervous about in terms of kind of feeling I am relinquishing my role as a supervisor, the supervisor may learn otherwise, that, no, this is working, its working just fine, and maybe as a supervisor I kind of was getting a little too nervous for no good reason. On the other hand, if it turns out there are some problems, well first of all, you can try to address them, not just say well that is it we are not doing telework, you know they may be fixable kinds of problems to address. But, if they are not, this was on a trial basis, and then an employer can say not with speculation but now with actual objective evidence heres how it didnt work and therefore it is not an effective accommodation meaning it did not enable the employee to perform the job which is after all the goal here, so that''s something I would also think about is trial basis. The last point I want to make is again that based on the experience we have had here at EEOC, I think it really behooves, be it personnel, HR departments, to think about working generally with supervisors and managers about their concerns around telework as an accommodation because it is real, it is out there. There is legitimate issues, sometimes it is though it is more emotional in terms of some supervisors just don''t like the idea of an employee whos off site. They to want see them, and it is rather emotional if you get to the root of it. But that is the kind of thing that could end up sabotaging an accommodation, and that is not good for anybody. It is not obviously good for the employee, but it is not good for the employer either. And that is my recommendation about HR personnel, really kind of dealing with these issues that supervisors have, trying to find ways to alleviate their concern, work with them if they need some extra work about giving it a try, a fair try, but not just kind of telling a supervisor, well, you must do it and then, walk away and leave it alone, and the next thing you know charges are being filed and everybody is angry and unhappy. I think this may be a time that there needs to be more support and intervention by something like HR personnel.
I really think that that comes to the point of the fact that it does get back to the case by case, I also would remind people just because you had one bad experience with an employee who did telework and it didn''t work out, remember that each individual is an individual and a lot of what the success of telework is, it is the personalities and the interaction between the individual who is engaged in doing the telework. Not everyone is the same in the way they work and some of their work skills and things of that nature, so it may have been unsuccessful for one employee because of a disability related issue or just because of performance related issue that is had nothing to do with the disability for that person who made it unsuccessful so that that case by case looking at it and as Sharon said looking and setting and feeling free to set the parameters and how you''re going to evaluate it and make sure everyone understands and knows what you''re looking at and what the expectations are because I think the questions we''ve had in the past about this issue has been where the expectations between the two parties have not been absolutely clear. Did I need to let you know every time I stepped away from my desk and I was not going to be available or when I was taking my lunch hour or doing something else? If there is an expectation you do that, then everyone needs to be clear about that particular thing. Okay. I think I am going to move on at this point.
Actually we do have one more question at this point.
I am sorry. Okay.
The last question.
Go ahead.
Yes. We here just have a request. We have an interpreter in at our office having difficulty keeping up, if we could slow down.
Thank you. Thank you very much. We will try to do that. OK, moving on, just some of the things to consider when determining whether or not telework is reasonable and some of the things we already covered in some of our responses to the questions that have been asked up to this point, again, your employer''s ability to supervise the employee adequately is something that would need to be taken into consideration, whether any duties require use of certain equipment or tools that cannot be replicated at home or a different environment, whether there is a need for a face-to-face interaction, and coordination of work with other employees maybe a consideration of whether or not something would or would not lend itself to a telework situation. Again could that be accommodated in other ways, today now with use of videoconferencing and things, we can often have a face-to-face discussion and it is just remote face-to-face discussion if that becomes part of the necessary interchange in the position. Whether in person interaction with outside colleagues or clients or customers is necessary and how that might be handled. Telework does not necessarily mean that all my work would be done in home, just as not all my work may be done in the office, so I may be doing what I would traditionally do in the office at home, but I still would be held responsible still would be responsible for carrying out other activities going to meetings, meeting with individuals and people, I may do those meetings in the office, I may come into the office those days those meetings take place. I may look at alternative locations to hold those meetings, I may look at other ways that we would carry out that function or that activity. Also again consideration is whether the position in question requires the employee to have immediate access to documents, or other information that is located only in the workplace. Is there something related to the nature of the documentation? Is it documentation thats shared by multiple people that there are specific security related issues with the information that we''re working with and utilizing and would there be a particular issue that might be a problematic there and that would preclude it lending itself to a telework situation? Again things to think about would be is whether or not the employer has a policy or practice of allowing employees to work at home. Equal opportunity or consideration for individuals with disabilities even if it is not an accommodation. Sometimes when I have had a conversation with an employer where they have had work at home already have a telecommuting type of a policy and the person with the disability is not necessarily making the request as a reasonable accommodations, they are just asking to be allowed to do the telecommuting the way that other employees are using the existing telecommuting policy, again, not specifically as an accommodation, the employer should consider somebody''s request the same as they would anybody else''s request in that context. Is work at home or telecommute as an accommodation, it is not necessarily all or none. Keep that in mind. There may be situations where circumstances where it would be it would be considered reasonable. Other situations where it might not be reasonable, and also that work at home may only be necessitated for the extent the disability necessitates it, maybe only a day a week, two half-days a week. I am just giving examples, that may be every day for a particular period of time during recovery from a surgery or other treatments related to a disability, so I think that again keeping your mind open to telecommuting and I think Sharon made some of the references earlier about the fact it may be only done on a trial basis to see if it is successful or understand that it may not be every day, it may only be some few days a week. Can a part-time home or part-time in the office schedule work? Again, in situations where face-to-face interaction is necessary with co-workers, or customers and clients, also what about the potential or the consideration of whether or not work at home would be on an as-needed basis. Could be as a reasonable accommodation when I have someone who may need work at home as an accommodation when there are particular periodic times where their disability may be exacerbated, and so the work at home would be the accommodation during that period of time, so it would not be an all the time situation, but it would be on an as-needed situation that individual could have an arrangement and discussion with the employer that there are some times in the morning that they wake up and have particular pain that makes it difficult for them to get dressed and take the public transportation or the transportation, the amount of energy that might be expended at that period of time and could those days or those times be used at a telework or telecommute circumstance or situation as an as needed versus an all the time circumstance or situation. Just wanted to share with you a little bit about some studies that have been done related to the issue of telework, some research that had been done in this area, there was a project that was funded called Project Stride, Strategic Telework Research and Disability Employment that was part of a trilogy of research grants that were issued by the Office of Disability Employment Policy under the U.S. Department of Labor in 2004 for addressing and looking at the issue of telework nationally, and this particular study it came out of the Midwest Institute for Telecommuting Education, and the Humphrey Institute for Public Affairs, where they looked at again a sampling of employers, so it is not necessarily that it can say that it applies across a national sample because there is a limited number of employers that were surveyed, but I think that the results or the outcome or something that you can take a look at to see where what is happened nationally and where our employers with this issue. 25% of the employers that currently practice telework said that they offered the option to employees with disabilities with 46% of those reporting that the practice was scattered throughout the organization, not just with people with disabilities. 71% of teleworkers with disabilities are full time employees. 37% of which are employees that reported the teleworkers had exempt employee status which meant that exempt versus nonexempt status is a legal terminology in relationship to employers obligations and legal issues associated with the type of benefits or the type of way that that employee may be treated for their time or their use of scheduling and things of that nature. Current employees with disabilities teleworked under various conditions such as isolated employee situations of which 45% of them were that situation, some with only with supervisor approval, 46%, and only certain types of jobs were eligible for telework, and employers reported about 32% in that category. 56% of the employers indicated that telework has been used as an option for short-term disability leave, for employees not necessarily as long-term but as a short-term situation, that there were no significant differences in the incidents of telework in disabilities in the government and nongovernment sectors although in their study that the government employer 32% of which had teleworkers versus only 24% of nongovernment, so I don''t think they are saying basically is it wasn''t significant numbers, but there seemed to be more teleworking within government than nongovernment. Employers with more than 500 or more employees had a higher prevalence of telework options for employees with disabilities, but employers with fewer than 500 employers, whether that tells us that smaller employers may be less likely than larger employers, I think that you cannot enough again in the numbers to say that definitively but something to look at, and that the employers that currently did not employ teleworkers and that were surveyed with disabilities express a strong preference towards beginning a new employee with a part-time telework schedule, if that was an option. Some of the most common types of jobs in the study that were looked at, office function positions, 52%, so that was the highest, administrative jobs, about 50%, research and analytical jobs about 45%, technical type positions primarily in the IT arena about 36%, Customer Service positions, about 26%, claims review about 24%, the types of jobs that were telecommuting in the employer that is were surveyed. Some of the challenges of employers reported were that they found that it was difficult to identify jobs that were appropriate to fit telework tasks, that they found that they had difficulty in measuring performance, a lack of priority placed on telework by management was one of the challenges that the employers said that they had resistance from. Some of their management and it wasnt a real priority for them to be looking at, and then some supervisor resistance or uncertainty about 32% reported that particular issue, but they did also report that there were benefits of increased ability to respond to particular employees needs, more flexibility in responding to employer''s needs, that they were able to retain valued employees by offering telework or telecommute opportunities, that they reduced employee turnover as well as reduced their recruitment costs by considering and engaging in telecommuting as an option, and that they felt that they were able to control rising costs of disability benefits by offering this option again whether it be the worker comp costs or their payout in disability benefit costs. When you look at the courts and what are the courts saying as it relates to telework as a accommodation, the 9th Circuit Court of appeals made a decision in 2001 that was really related to the fact that this was an individual who had an obsessive compulsive disorder, they were disciplined for attendance problems that they had with their disability, and the employer had a policy that indicated that anybody who had any disciplinary action against them ever in the recent period of time would not be eligible for using their telecommuting policy. In this situation the courts ruled that it would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past discipline action taken due to the disability that was actually being sought to be accommodated because the person''s attendance related issues had been specifically related to their disability, and so that the courts were saying that this was an accommodation to address those disciplinary actions and so that it was reasonable for that employer to consider that as an accommodation and again in this case modify or make a modification of their policy accordingly. There was a case early on in the ADA in the Seventh circuit, Van Zan versus Wisconsin Department of Administration that had an individual who was recovering from medical complications associated with their disability and they requested telework as an accommodation following that extended medical leave. The employer denied that request for telework as an accommodation. In this particular situation the seventh circuit said that individual in this case that was working with a team under supervision rather than solitary unsupervised work that the individual would not be reasonable for that employer to provide that accommodation in that case at home without the quality of the employee''s performance being impacted or affected because of the nature of the job that the person had and the type of work that they did, so I think it shows just between looking at a couple of the cases is that the courts are definitely looking at telework as a potential and not outright saying its not, but their looking at the employer defenses and employer issues related to this. In both of these situations employers argued against the telecommuting and in the one situation the courts definitely said that an employer policy needed to be addressed in relationship as it being a bar to this person receiving that as an accommodation and in the other case the courts were saying that an employer does need and has the right to look at the type of work and the essential functions and how those would be impacted by that individual being in a telework kind of situation. There are some case studies that were done by the Research and Training Rehabilitation Research and Training Center, workplace supports.com is their website out of Virginia Commonwealth University, which again was part of the trilogy of grants that were given by the Department of Labor to look at telework across the country, and they looked at some best practices or some case studies around telework, and you can see those in the materials that Ive provided for you, just a brief synopsis of some of the things that were pulled out, but a call center, a 24/7 call center, where you have a really high employee turnover, and in this case the employer was really motivated to look at work at home options in order to increase their employee retention and so it really lent itself to more actually recruitment and accommodation of existing employees and potential telework situations. They duplicated the telecommunications and office equipment in the worker''s homes, and they required all the training and such to be conducted onsite for a consistency and to help with identifying problems and things and also employees even in teleworking situations were required to be onsite periodically to attend meetings and for additional training. I think that they highlighted in their case study how in one particular circumstance that the telecommuting actually became a disaster relief program for them because they had about a 30 foot snowstorm in one of their locations and all of the onsite dispatchers could not get into their office. This was in Minnesota, but all of those were working teleworking were able to continue to work, and they actually handled all of the calls on the 24/7 environment for 30 hours straight while the Company was trying to get back up and speed with getting their employees who would work in the actual call center back in the office after the snowstorm, so in that case they actually called upon it as really a potential savings for the employer in a multiple areas of when you have unpredictable circumstances that can prevent even people coming into their actual office. ChimneySweeps which is a furnace and air conditioning maintenance company with a sole proprietor who actually worked out of his own home, he hired somebody for telework to handle his employment scheduling and Customer Service calls. He didn''t need somebody in the office, he just forwarded his office phone line when he was not there occasionally also on weekends to that person''s home. This kind of enabled them to avoid renting office space, enhanced the customer service that was able to be provided by the employer, especially given that he was a small employer. A law firm was highlighted as hiring somebody with a disability as a teleworker to answer phones, 5 p.m. to 10 p.m. when the office was closed. Because the law firm did a lot of advertising on TV about their services and they needed somebody who could answer the phone calls especially when those advertisements would run on the telephone, I mean on the television. Resources Inc. is a nonprofit organization that does a lot of Customer Service work. They had somebody with a significant disability with pain and fatigue. That person was responsible for maintaining database and mailings and handling Customer Service calls and orders that came into the office. That individual was accommodated through work at home situation with the only caveat they would be required to attend regular staff meetings in person and were to maintain daily contact with their co-workers through both telephone and e-mail. They again took the responsibility to install additional telephone lines in the home and supplied all of the office equipment, so these are just some case studies that highlighted how telework is been used and how employers have seen some of the benefit of telework used in those situations. I am just going to transition here over to altered work schedules. I am looking at altered work schedules as an accommodation as well. We got into a little bit of a discussion earlier. Also, telecommuting can play into altered work schedules because telecommuting can allow somebody to potential work an altered work schedule, but altered work schedules can also include working in the office in more traditional means in an altered manner as well, so some of the terminology that we see associated in our attached sometimes with altered work schedule its the context of flex time. This would be when somebody begins and ends their work at non-standardized times. They typically work the same number of days and hours per week or pay periods but they would do it in a different timeframe. So for example, if I worked a 9 to 5 of my traditional office hours were 9 to 5 p.m., but an employee might work them -- work that eight hours that were normally or typically done in that 9 to 5 period, they may begin and end their day at non-standardized times, they may start at 4 in the morning and end at 2 in the afternoon or something of that nature, so they are flexing their time in that context. Flexible scheduling, a little bit different, where an employee may take scheduled breaks at different times than other employees or extended breaks. Their work may be adjusted to accommodate an additional break time as needed, so I may actually be in the workplace ten hours, but two of those hours might have been additional break time or accounting for additional break time that I may have taken rest periods and such during that day but still working my eight hours of work but in a different schedule. Compressed work schedule, someone who works a full time schedule in less than a traditional five-day work week, so you said somebody who works 40 hours a week but works it in four days instead of five days may also be an example of an altered work schedule. Reduced work hours, this kind of relates to that discussion we had a little bit earlier where employee reduces the number of hours they work below full time to maybe have an impact on their pay or their benefits in relationship to that issue, so I may be a 40-hour work week, but I may reduce my work to 32 hours a week or 30 hours a week or 25 hours a week so I am reducing my overall hours worked in that week. Job sharing is another form of an altered work schedule, taking a regular part-time forming a two people may work a job together where they may take two people who may work part-time, maybe have the same position, they split of the hours and responsibilities either evenly or unevenly, so one person may work 20 hours, 15 hours, and the other person may work 25 hours. Still constituting a 40-hour work, but again all of these things are sometimes referred to or looked at and seen within employer policies or within employer practices as altered work schedules, and could be used as potential reasonable accommodations and even if they aren''t a part of an existing employment policy, could be on a case by case situation be under the privy of being a considered because of the needs to do so as a reasonable accommodation, but I might need these things as an accommodation to transportation, unreliable paratransit scheduling, a shared rider travel assistance that I might require due to my disability, and maybe looking at this as an issue for accommodating medications, side effects of medications, or accommodating the administration of medications. I may also be doing it for the purposes of accommodating periodic treatment that I may need, a medical appointments, therapies, et cetera. Also be using this or looking at this as an issue for accommodating episodic manifestations of my disability, fatigue, pain, as part of that. Also, not to rule out for some of you in the country who are in ice storms and snow today, impact of weather related situations, rain, snow or cold and its impact on my mobility or transportation or my disability itself. Some considerations for employers again looking at policy, needing to potentially modify existing policies as needed, just because I have a lack of or don''t have a flexible or alternate work schedule policy does not mean that would be a defense for denying a request for such as a reasonable accommodation, again when I am looking at something as reasonable accommodation, it may go outside of what existing policy and practice is and where I may need to look at that at least. Also, considering getting the job done, how does some of these altered work schedules impact the ability to carry out the essential functions of the job? Are there specific time constraint issues associated with a position that may make it difficult to be able to accommodate or not? Can I look at the issues of quality control and supervision, somebody working outside the normal work hours where they may typically be in a supervised situation, but the supervisor is not in during those periods of time where they may be working outside of the standardized work hours, is that an issue or not, is there a supervision issue, is there a quality or quantity issue associated with any of those things, can that person meet the performance standards even within the parameters of that altered work schedule and what are the impact on the business operations? I have had employers say, well they have had somebody who has requested to come in earlier but the office isn''t open earlier, and there is nobody there with the authority to open the office, this employee is not for whatever reason the rank of their employee does not have access or does not have given keys to the office and things, all of those things would have to be looked at. Again, further accommodations might be needed. Maybe I can come in earlier, but I need accommodations to turn on all of the equipment. I can''t operate or reach all of the equipment because maybe we don''t turn our servers on or we don''t turn our copy machines on or whatever till the office is open, but I would need those, would there be further reasonable accommodations necessary to give me access to the equipment that I might need to do my job. All of these things could come into play around all of these particular issues around altered work schedules. Just to think about some steps to for HR managers, employers to consider and I think Sharons mentioned some of them we will, just reiterate some of them, again, to make sure you identify and review your existing policies that you may have regarding flexible scheduling and/or telecommuting, do you have policies and if not, would you benefit from potentially having one? To review any existing policies and procedures to ensure that they could include reasonable accommodation requests and how those might be handled, look at your job descriptions and identify your essential functions and can these functions be carried out through telework and/or flexible scheduling? Make sure critical here is to educate your managers and supervisors regarding these issues as potential accommodations, making sure that they understand what information is available to employees about requesting telework or flexible scheduling as an accommodation. What is the process for requesting an accommodation? Do people know? Would it be different or how might it be different additional information needed if telework or flexible scheduling was one of those being requested, and how would you go about determining if telework or flexible work scheduling is reasonable, what would be the analysis and what information would a supervisor or manager need enable to do that or make that determination. So I think that as we have been talking about, and you have heard in some of the questions that have already been asked, this is something that is more and more prevalent in the workplace, more and more employers out there, technologies advancing an such it is something being more and more considered and it could be on the table for potential reasonable accommodation. I know we had questions. I had been sent in advance about what if I wanted to specifically look for just a job that was telecommuting, so was actually looking to apply for a position that was a telecommuting position? I think that there are some resources out there, there are resources specific to disability in this particular issue of actually looking for a telecommuting job or establishing my own business or my own consulting service that I would do in a telecommuting situation, and I would refer you to the telework tools.org website which was one of the websites that was created under some of the funding that was carried out by the Office of Disability Employment Policy, and they have some good resources there of organizations and entities who specifically recruit for positions that are telecommuting or work at home type of positions, so I just wanted to respond to that question in advance. So at this point I think we''re ready to take some more questions.
Once again ladies and gentlemen, if you have a question at this time, please press the 1 key on your touch tone telephone now.
Excuse me, Robin, I have another question that was submitted on line and the questioner wants to know if it is all right to ask the employee about home-based distractions such as children, day care, pets or other people, and how the individual will deal with those types of distractions?
I think that this is again part of that whole interactive process and discussion, the concern that is an employer may have. I think just that it would be no different than you would be talking in the workplace about distractions in the workplace. I think understanding the environment that the person is going to work under, and how that plays into the person actually carrying out and doing the job, I think it would be in the context of having a better understanding of what would be happening in the home and how the home environment would be structured to support doing the work. I mean, the quiet time, do you have an area within your home that you can work in and I think that it is part of the discussion and looking at that particular environment. And Sharon, you may have additional to add to that.
The one thing I would add to that is a kind of caution for employers. If an employer has a telework program, a general program for all employees or a certain category of employees, and the employer does not ask as a sort of predicate to getting into that program any questions about the home environment, about kids, or pets, or whatever distractions, there could be an issue as to why when someone is requesting telework as a reasonable accommodation suddenly the employer is asking these questions, so I would kind of put a little caution, I mean as a general matter I think Robin is right, I think it could come up legitimately, but I could foresee some potential legal problems that an employer doesn''t think that could be a problem for employees participating under the general telework program. Again, at that point I would be looking at is there something about this employee that''s already raising concerns? Is there something with a particular supervisor, that you can have a supervisor who doesn''t like the telework program but knows they are stuck with it and they know they can''t ask these questions, but thinks, ah, this is a reasonable accommodation request. You know I wish I could ask everybody, but this person I can ask. I mean that may be a signal where we''ve got a supervisor who may have issues just around telework in general.
I think it goes back to the fact that employers should consider that the person with disabilities should be treated the same in those kinds of things as individuals without disabilities. Next question.
We do have a question on the phone line.
Hi. Thank you. I am referring to slide number 11 that talks about the stride data and the first statistic there has me a little bit confused. Where it says 25% of employers that currently practice telework offers that option to employees with disabilities. Does that mean that 75% do not offer that option and isn''t that in fact a violation of the equal opportunity provisions of the ADA?
I believe I don''t have the specific about that, but I believe as I pulled that statistic from the study, so they didn''t give me a lot of additional dialog on that issue, but I believe that that statistic that the way it was come from was that they included people with disabilities in that 25% that were providing it, so that it was not that it was segregating out in any way, shape or form but that employees with disabilities constitute 25% of those that were using telework.
Okay. Thank you.
Yeah. Go ahead. Next question.
I am showing no further questions from the phone lines.
Actually, if I can sort of interject here going back to remembering the gentleman who asked a question in our first segment, and if I understood it right, and I hope I did, what I kind of took from that question was I thought an individual and employee was asking for what sounded like a compressed schedule that ultimately maybe theyd work four ten-hour days to get their 40 hours in, assuming that was the ultimate requirement for a full time job, 40 hours, so they could take off be it the Friday, a Monday, a Wednesday, basically work four days, take one day off, or some employers, federal government does this is you can have every other Monday off or every other Friday by adjusting the number of hours you work those other nine days, so I thought the question had to do with someone who had proposed as a reasonable accommodation to work a compressed schedule, that the employer''s response was basically no, instead use leave. You want that sort of day off, you have got to use leave, and if I am right, that that is the question, then certainly the EEOC would take a very dim view of the employer''s response, that in essence the employer would seem to be saying we don''t want you working full time, we don''t want your productivity because the employee is proposing to work the full schedule, just doing it in a different way, but the employer is saying, no, we will take less than that, but you instead take some of your leave, and the EEOC''s view is that under the ADA or for the Federal Government, the Rehabilitation Act, that there is a kind of hierarchy in terms of a sort of preference of which accommodation should be done first, and in the EEOC''s view, any accommodation that allows a person to fully work to work their full number of hours, that would be the most affective kind of reasonable accommodation to provide, and you only get to saying that someone needs leave where there is no effective reasonable accommodation that would enable somebody to work their full number of hours, and here that is being called into question because the employee is proposing something. It seems to work their full number of hours. This is something that I would expect you are going to see more litigation over it, but I think employers need to be really cautious about choosing when they want to choose leave as an option when there would seem to be an accommodation that would allow the person to work.
Sharon, could you comment on the other end of it, let''s say the individual was actually saying they couldn''t work full 40 hours a week and they wanted to take Fridays off and only work four days a week instead of five days a week, but obviously maybe the employee approached the employer and was concerned about maybe their benefits would change if they went below 40 hours a week, something of that nature, would FMLA kick in at all this that regard to that fifth day being accounted as against my FMLA leave?
Well, certainly. Employers need to be aware that they may have more than one law to deal with, and certainly my recommendation is always take each one separately. So in the hypothetical you are setting up, Robin, I would certainly tell an employer if the employer is covered by the FMLA, the employee is covered, then play it out under FMLA so you make sure you''re following the requirements of that law. Then put FMLA aside and play it out in terms of the ADA, and there while the ADA does recognize part-time work as a reasonable accommodation, depending on the number of hours that an employee wants to reduce his schedule by, your example is instead of a five-day work week, I will only work four days, say it is a 40-hour work week. I will work four eight-hour days, not five, there becomes a question eventually I think with part-time work, are you really able to accomplish the essential functions in only working four days and at some point most of us really need the five full days or if we are going to do a compressed schedule, we are going to work four ten-hour days to get our 40 hours in, but there is a reason that you have got to have certain number of hours because there is that much work to do, and it is one thing if somebody needs to shave off maybe two or three hours, but when you are talking shaving off a whole day, then I think an employer has every right to ask about whether the full amount of work can be accomplished, and if it can''t, there could now be an issue that this person isn''t qualified for this job, they can''t really fully perform all the essential functions, and so again we know you don''t have to create a new job, you don''t have to create a part-time position for this person, but maybe what the person needs ultimately is going to be a reassignment. Before we get to reassignment, I will be really engaging in this interactive process about why the person needs the day off, do they really need a full day off, are there accommodations that would enable the person to work that day such as working at home, might be explored at that point, but also even other accommodations that would enable the person to come in even if it is coming in half a day on that fifth day, something that gets them much closer to the full work week schedule.
And it also maybe again conversation is this a long-term or short-term situation.
Exactly. That is why you can''t do a cookie cutter approach, and there is so many different questions that legitimately an employer needs to ask, needs to explore before the employer can make an informed decision about what would be an appropriate effective accommodation that works for the employee as well as for the employer, and whether you really are getting into the area of having to consider reassignment.
Great.
Alright. Well, we have reached the bottom of the hour, Robin and Sharon. And for anyone that has additional questions that have come up and we have not been able to Sharon and Robin have not been able to address, I would encourage to you contact your regional ADA center by dialing 800-949-4232 with those questions. Want to thank both Robin and Sharon for their sharing expertise and knowledge with us for the past 90 plus minutes. It has been a great session. As a reminder, there are three more sessions coming up in the employment series, the next session audio conference session taking place on February the 17th dealing with Unraveling the Differences and Similarities Between Leave, Light Duty, Reassignment, and Return to Work Issues for Employers. Again that will takes place on February the 17th. You can get additional information on the upcoming audio conference sessions by visiting the audio conference website at www.ada-audio.org. You may also direct your questions by calling toll-free 877-232-1990, 877-ADA-1990, and just as a reminder an audio archive as well as the text transcript of today''s session will be available on the audio conference website, 10 to 14 days from today''s date. I want to thank everyone for joining us, and everyone have a great afternoon. Thank you.
Ladies and gentlemen, that does conclude the conference for today. Again, thank you for your participation. You may all disconnect. Have a good day.