How the return-to-office order affects people with disabilities
With President Donald Trump ordering the revocation of telework for federal employees, how ready are federal offices to accommodate people with disabilities?
Now that President Donald Trump has ordered the revocation of telework for federal employees, the question is how ready are federal offices to accommodate people with disabilities. That’s a legal requirement. Federal employment attorney Aaron Szot joined the Federal Drive with Tom Temin to give his perspective.
Interview transcript:
Tom Temin: And the accommodation of people with disabilities, long-standing statutory requirement, going back, I think, to the 1970s. And I guess it’s fair to say that telework itself is an accommodation, correct?
Aaron Szot: That’s correct. And you are correct about the Rehabilitation Act. It has been around over 50 years and the Trump administration’s executive order signed January 20th has the caveat that the memorandum shall be implemented consistent with applicable law. So even the executive order itself provides some discretion to department and agency heads that they can make exceptions they deem necessary. At the end of the day, it still needs to comply with the Rehabilitation Act of 1973, which applies to federal workers.
Tom Temin: And what are some of the contemporary accommodations that are available to people with disabilities? Because they could be immobile in some manner but have full sight and hearing or they could be totally mobile but not have sight or hearing in this kind of thing. I mean, it’s not one problem that people face.
Aaron Szot: That’s right. It’s certainly not one size fits all. And telework has been shown to be an effective accommodation. What is effective and what is feasible for employers is part of an interactive dialogue between the employer and the employee. So here we have a lot of federal employees who have already been granted telework as a reasonable accommodation. And it will be difficult for an employer to revoke a telework, reasonable accommodation already in place. Things that may come up to affect granted reasonable accommodations, specifically telework, include changes to the essential functions of the job. What is now new that no longer makes telework an effective accommodation for the employer? And what I mean by that is, as part of this interactive dialogue, we want to figure out what works for the employer and what works to accommodate the employee’s specific disability. The employee doesn’t get necessarily their first choice of accommodation, but one that is effective. So employers will talk through what best meets the needs of the employer and satisfies the needs of the employee. So with this change in administration and this executive order, I think employers are going to take a closer look at telework as a reasonable accommodation. But what revocation hinges on really is what is new? What has changed? Do we have different essential functions that make telework no longer an accommodation that the employer can provide? Is there an undue hardship? Is there some new significant difficulty or expense that makes it prohibitive for an employer to provide telework? Employers can also look at alternatives. So what else may be effective for the employee but is better for the employer given business operations? And then lastly, a change to disability status. So it may be that the employee has had telework for quite some time and there’s been no second look at what’s still required. Was it a temporary disability and the employee is now recovered or is there no longer a need for full-time or situational telework?
Tom Temin: So what you’re saying that essentially is that every situation is different and that the agencies will have to look at this on a case-by-case basis? You can’t put a blanket policy in for everyone with a disability.
Aaron Szot: That’s exactly right. And the Rehabilitation Act specifically prohibits employers using such blanket policies to deny reasonable accommodations. So even if there is a policy in place prohibiting telework or requiring certain eligibility to grant telework, there can be exceptions to that policy for employees with disability who need telework as a reasonable accommodation.
Tom Temin: We were speaking with federal employment attorney Aaron Szot. She’s a partner at Kalijarvi, Chuzi, Newman & Fitch. And I wanted to ask you about transporting oneself from home to work because the technology available to help those that might be hard of hearing or have a sight impairment is pretty much available anywhere you are. Every computer can have most of the accommodations needed. So does if you’re blind, say, well, transportation becomes a challenge just getting from place A to place B and if you have to get on metro or something. So is the transportation issue considered part of the equation here for accommodating people?
Aaron Szot: That’s actually a bit of a gray area. So the Equal Employment Opportunity Commission and some circuit courts do recognize an employer’s obligation to accommodate an employee’s commute. Other circuits do not. So, again, this is case by case. And employees should consult with an attorney if this is a question that comes up for them.
Tom Temin: And in accommodating work, regardless of whether it’s in the office or telework, is the agency obligated to provide the same functionality at home, if that’s possible? Versus as well as what it can supply in the office setting for the accommodation of the disability.
Aaron Szot: That goes to the question of undue hardship. So factors to consider would be the nature and cost of a reasonable accommodation. The overall financial resources of the agency and the impact on business operations. So employers are going to need to look at what needs to be provided to the employee in their home to perform the essential functions of their position. And again, this could come down to a cost equation. Now for the federal government, what is significant expense is a very different question than a small private employer.
Tom Temin: So for the individual agency, then you really need to know all of the tentacles of what constitutes providing for disabilities before you can really make a determination. You’ve got to balance a lot of costs.
Aaron Szot: To a certain extent, yes. And that’s part of the interactive process. And it may be the case that the employer needs to operate certain machinery or have access to certain equipment that cannot be provided in the employee’s home because it would be an undue hardship on the employer to provide that specifically. So these are all things that need to be talked through in arriving at what is effective for the employee and possible for the employer.
Tom Temin: I mean, people doing so-called white collar intellectual work, that’s applications on a computer screen. That seems a lot more reasonable to accommodate wherever is easier for the employee than, say, if someone’s operating a stamping press, which you have to go to it, regardless of what the operation is.
Aaron Szot: That’s exactly right. So we’ve seen over the years that telework works and it can be an effective accommodation for employees. And where there is a lot of at-your-computer-office work, we’re not seeing undue hardships to employers in permitting employees to conduct that work at home because of a disability.
Tom Temin: All right. So what will you be looking for in the dispute area here? Because, I guess, your firm is on the employees. That’s who your clients are against the agencies typically. So what will you be on the lookout for?
Aaron Szot: On the lookout for agencies who don’t understand their full obligation as federal employers under the Rehabilitation Act? So with this return to in-person work executive order, although there is discretion to provide exceptions and a requirement to comply with existing law, not all employers get it right. Not all supervisors understand all the contours of reasonable accommodations and what is required by the act. And so we’re here to provide guidance to employees where they have concerns about existing accommodations, what their supervisors are conveying to them, changes in policy that they’re concerned will in some cases inappropriately impact reasonable accommodations that have already been granted or where they need to be requested in the first place. So just making sure employers are acting consistent with their statutory obligations and then again providing that support to employees as they work through this process with their employers.
Tom Temin: And what is the function within an agency that’s in charge of this? Is it HR? Is it the EEO office or somebody else?
Aaron Szot: It can be some of all. Employees typically go to their supervisor first to talk about a limitation or a need for accommodation. There are no magic words, so employees do not have to say reasonable accommodation, Rehabilitation Act, disability. It can simply be an open conversation with their supervisor, with someone with the authority to make these changes to figure out what works. So it could start with the supervisor. It could be elevated to the extent the supervisor needs additional guidance. But we’re here as attorneys to assist those employees in making sure that conversation happens.
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Tom Temin
Tom Temin is host of the Federal Drive and has been providing insight on federal technology and management issues for more than 30 years.
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