Requests for Telework
Q: How does an individual advocate for an accommodation request such as telework when the employer says they can't do that if others do not have the same opportunity. Meaning, they do not have a telework policy and they refuse to allow the individual that accommodation because others are not allowed to take advantage of telework?
A: Knowing their own rights and responsibilities as well as an employer's rights is essential for a person to be able to advocate for themselves. If an employee is working for an employer who refuses any telework, then he or she could share guidance from the Equal Employment Opportunity Commission (EEOC) with their employer. If this is not helpful and the person feels that she is being discriminated against, then she can file a complaint with the EEOC by calling 800-669-4000.
On the matter of EEOC's guidance on telework, the agency has issued guidance, Work at Home/Telework as a Reasonable Accommodation.
It's worth highlighting two parts of this guidance as a starting point for a conversation. First, its introductory paragraph:
Not all persons with disabilities need - or want - to work at home. And not all jobs can be performed at home. But, 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.
May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program?
Yes. Changing the location where work is performed may fall under the ADA's reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee's preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
So, in order to advocate for their reasonable accommodation, an employee with a disability has to learn and know what might potentially be reasonable as an accommodation. This means balancing what is needed to allow the employee to do their essential job functions with what would represent an undue hardship for the employer. Notably in the case of telework is the fact that the EEOC has indicated that an employer's general no telework policy is not sufficient in itself to deny such a reasonable accommodation request.