JOE ZESSKI: Hello. Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life.
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On this edition of Ask About the ADA, we're going to talk about the issue of advocacy and knowing how to speak up for your rights in the workplace in terms of reasonable accommodation requests.
Here's our first question, and this one came from a webinar that we hosted at the Northeast ADA back in October. The question was, how does an individual advocate for themselves for a request for reasonable accommodation, such as telework, when the employer says that they can't offer that because the employer doesn't have a telework policy, and they refuse to allow an accommodation because others can't take advantage of telework?
Well, in this case, knowing your rights and responsibilities as an employee with a disability, as well as the rights of an employer, is essential in order to be an effective advocate for yourself. If an employee is working for someone who refuses to offer telework at all, well, then the individual can perhaps share guidance on telework from the Equal Employment Opportunity Commission, the EEOC, which of course is the federal agency that enforces Title I of the ADA. That's the part of the law that deals with different employment provisions. Ultimately, if this isn't helpful and the person feels that they're being discriminated against because of their disability, they always have the right to contact the EEOC and potentially file a disability discrimination complaint or request an investigation.
But before that happens, let's look a little more closely at telework and the guidance that the EEOC offers regarding telework as a reasonable accommodation. The EEOC has issued guidance-- "Work at Home/Telework as a Reasonable Accommodation." And in this guidance they raise a couple of interesting points that are worth noting. First of all, in the introductory paragraph for the guidance materials, the EEOC notes that not all people with disabilities need to work at home or would want to work at home. And they also acknowledge that not all jobs or job functions can be done at home.
However, there may be times where reasonable accommodation is possible where the person's disability prevents them from being able to do the work on site, and the job or parts of the job could be done remotely without significant difficulty or expense. Or in other words, undue hardship, as it often is known under the ADA. Beyond that, the EEOC directly addresses the question of if an employer has a no-telework policy, do they have to permit telecommuting as a form of reasonable accommodation? And the answer is yes, with some caveats to it.
So first of all, allowing someone to telework is an example of a modification to a policy. So even if there is a general no-telework policy in place for employees, an employer, as a reasonable accommodation under the ADA, has to at least consider whether or not modifying this policy in a specific circumstance for this individual with a disability would be appropriate and would be a form of reasonable accommodation.
Now, that being said, keep in mind that the employer does not necessarily have to offer the employee their preferred form of reasonable accommodation or the exact accommodation requested. However, they do have to offer an accommodation that is effective and meets the need for the accommodation requests related to the employee's disability and being able to do their essential job functions.
So to circle back to where we began with the issue of an employer having a general no-telework policy and how an employee with a disability can advocate for an accommodation to be able to telework, we have to remember that the employee has to know what their rights are and what the employer's rights are. So telework can be a form of reasonable accommodation even if there is a general policy in place that prevents or prohibits telework.
Further, the employee has to keep in mind that reasonable accommodation does involve limitations. If a reasonable accommodation request imposes an undue hardship on an employer, then the employer does not have to provide the accommodation. And also, ultimately it is the employer who gets to decide what is the accommodation. It has to be effective, but it is the employer's choice.
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And now let's look at our second question. Again, it's focused on advocacy in the workplace. How does an employee advocate when an employer says a request is not fair to other employees? Well, there's no straightforward, simple solution here. Sometimes employers aren't familiar with the ADA. Lot of times, people who have disabilities assume that all employers are aware of the obligations under the ADA, and that might not be the case. And so there might be an issue of some disability education that needs to be involved.
At its heart, the ADA is about equal access and equal opportunity. And that's the point to really convey. A reasonable accommodation isn't a special privilege, and it's not providing an unfair advantage. Reasonable accommodations are about creating an equal playing field so that a person with a disability is able to do the essential parts of their jobs and to be able to be as productive as their colleagues and counterparts who don't have disabilities.
So for the employee with a disability, they need to figure out how to communicate this idea and this principle best. And unfortunately, this is very much an individual decision. And something that a person needs to decide on a case-by-case basis based on their own personality, based on the work environment, based on other supports that they may be able to draw on from within an organization to be advocates for themselves and for others.
Really, reasonable accommodation is about flexible thinking and realizing that policies, practices, and procedures might need to be altered in order to provide that equal access and equal opportunity in order for a person with a disability to be as productive as possible in the workplace.
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That's it for today's episode. I hope you found this informative and interesting. Certainly, knowing how to communicate about disability rights is always a challenge for employees with all types of disabilities. And to find out more about your rights and responsibilities, please visit us at the Northeast ADA-- www.NortheastADA.org. You can, of course, always submit a technical assistance question to us by email at NortheastADA@cornell.edu. You can call us at 800-949-4232, and even reach out to us on social media. Just look for Northeast ADA. I'd like to thank Grace Fairchild, our producer, for editing today's podcast. And thank you all for being a part of the conversation. Let's continue it.
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