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Can feds preserve telework as a reasonable accommodation?

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So you’re wondering if telework can count as a reasonable accommodation?

Assuming you’re not just trying to juke the system into letting you keep working remotely after your agency announced return-to-office plans, there are instances in which working from home can be protected as a reasonable accommodation for those with a qualifying circumstance.

“But employers need to remember that that’s related to things that deal with disabilities,” said Stephanie Rapp-Tully, an attorney specializing in discrimination in the workplace. “Just because you want to telework, doesn’t mean that it has to be granted. You have to be able to cite a reason why you need telework to do your job.”

A handful of agencies and their sub-offices have announced formally that they will be increasing in-person work as early as this month, with more trickling in this fall. The response from federal employees online and in interviews with unions representing them has been sour, with many saying they feel the decisions are poorly justified or arbitrary. As agencies are in the process of figuring out appropriate next steps, some may be wondering what recourse they have.

Telework as a reasonable accommodation may not be one of them.

The American With Disabilities Act does not require an employer to offer telework. But if they do, it must allow employees with disabilities an equal opportunity to participate in such a program.

An employer could also offer a different solution to teleworking that would help an employee accomplish their work.

Roughly 9% of the federal workforce said identifies as having a disability, according to data from the U.S. Equal Employment Opportunity Commission.

“If a manager says ‘everyone must show up five days a week’ and ignores reasonable accommodation requests that were, [in fact], reasonable, and based on a disability, for example, that’s potential liability there,” said Rapp-Tully. “All of those requests need to be reviewed proper and thoroughly and accommodations need to be granted where appropriate.”

Managers need to have the authority and the discretion to decide what’s best for their team coming out of the pandemic, Rapp-Tully said, and if that means requiring work in-person, then they have the ability to make that call, so long as it’s uniformly applied.

After an employee requests a reasonable accommodation, the employee and the agency enter into the “interactive process” to describe the problem and arrive at an appropriate solution.

The Pregnant Workers Fairness Act also went into effect in June to legally require reasonable accommodations for pregnant employees in the workplace, which could include telework as an option among other things, like a stool or chair to sit on or extended bathroom breaks depending on the circumstances.

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