Tips from the Trenches

So An Employee Has Requested Telework As A Reasonable Accommodation

Mar 27, 2019 4:11:28 PM / by Deryn A. Sumner, Esq.

Many federal workplaces encourage the use of telework for all employees, regardless of whether they have a disability or medical condition. And some federal workplaces actively discourage the use of telework, for reasons of confidentiality, national security, or simply managerial preference. We’ve seen the pendulum swing back and forth in recent years on telework. Although once actively discouraged, workplaces in the private and federal sector moved towards encouraging remote work to reduce commuting time for employees and to save on office space.

But with that has come concerns that reduced face-time has stymied employee development and collaboration in the work environment, not to mention the periodic reports of abuse of telework that make the news. Regardless of its current standing on whether it is the best or worst thing to happen for workplaces and employees generally, the fact is that for many employees with disabilities, being able to telework a few days per week, or even full-time, can mean the difference between being able to maintain employment or not.

Some jobs are more suited to telework than others, and in responding to requests for telework as a reasonable accommodation, employers should be careful to analyze the actual essential job functions as actually performed by the employee and not jump to conclusions that a position cannot be performed remotely. Blind adherence to the tasks set forth in a position description can lead to liability for employers. Further, dismissive conclusions that attendance at meetings can only take place in person in order to be effective, or that employees cannot be effectively supervised if they are not physically in the workplace can lead to trouble for agencies.

Employers should also consider trial runs of telework as an accommodation. The EEOC in Natalie S. v. Department of Veterans Affairs, 118 LRP 4427 (EEOC OFO 01/26/18), noted that where the agency had concerns about an employee’s performance and conduct, it should have considered a trial period of telework as a reasonable accommodation to see if the job could successfully be performed remotely. There is little to be lost by an employer in agreeing to a trial period, and such agreement provides a strong argument that the agency tried in good faith to provide an accommodation, which can shield it from payment of compensatory damages. 

Some positions simply are not conducive to telework -- those that include in-person escorting of visitors, access to information that simply cannot be removed from a workplace, or extensive on-site visits, for example. In such cases, agencies should carefully document what considerations went into the decision not to allow telework, and what alternative accommodations were offered instead. Reassignment away from the position of record may be the only viable accommodation if telework is not an option.  

© 2019 LRP Publications

Topics: reasonable accommodation, telework, federal hr & eeo law training

Deryn A. Sumner, Esq.

Written by Deryn A. Sumner, Esq.

Deryn A. Sumner, Esq. is a Partner at Gilbert Employment Law, as well as Co-Chair of the firm's Federal Sector EEOC Practice Group. She focuses her practice on representing federal employees and agencies before the EEOC and has worked on hundreds of cases involving claims of employment discrimination on the basis of disability, race, age, religion, retaliation and other bases. She also has experience representing employees and agencies in cases of whistleblower retaliation and adverse action challenges before the MSPB. Ms. Sumner graduated from American University's Washington College of Law in Washington, D.C. While in law school, she served as a Note and Comment Editor on the Administrative Law Review, as well as co-chair of the Labor and Employment Law Society. She also holds a Bachelor of Arts in Political Science from the University of Southern California in Los Angeles, California. Ms. Sumner is the co-author of several books on federal sector employment law including Representing Agencies and Complainants Before the EEOC; Federal Sector Disability Discrimination Law Deskbook; EEO Counselors' and Investigators' Manual; and an annual Consolidated Federal Sector EEO Update.


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