If Not Now, When?

Submitted by Guest Blogger on Tue, 12/28/2021
As a society and a capitalistic country, we have arrived at the optimum juncture in history to propose teleworking as the predominant way for persons with disabilities to participate in the 21st Century workforce.

Persons with Disabilities as a Group

Let’s start with an accepted demographic for this group: one out of every five Americans lives with some sort of physical or mental disability. Next, let’s consider the possibility that anyone else might join this group at any time due to a slip & fall or the failure of some part of the human anatomy. Finally, let’s examine a fact -- our country’s population continues to age with 10,000 to 12,000 baby boomers turning 65 every day until 2030. Many retirees simply did not plan well for their golden years and face outliving their retirement funds based on the present value of those funds. Unfortunately, as the economy ebbs and flows, inflation intermittently will rear its very ugly head, and people will be forced to spend more to sustain the same standard of living. Now, we need to connect the dots between the composition of this group and working remotely, i.e. teleworking.

Size of Group Destined to Increase 

Accidents leading to a disability: Just think of the incredible number of personal injury lawyers advertising on radio and television. Then multiply the number of lawyers by your guesstimated number of clients, and you come up with a staggering tally of temporarily or permanently disabled clients.

Failure of some part of the human anatomy leading to a disability: Millions of hips and knees will require replacement for those we generously refer to currently as able-bodied.

Time to connect the dots. Applying common sense to the facts laid out in this and the previous section, we must conclude that the population of persons with disabilities will continue to grow, probably exponentially for the foreseeable future. Sadly but inevitably, many of the new members (formerly referred to as the able-bodied folks) will need jobs they can perform from home just to make ends meet.

Definition of Terms to Facilitate the Discussion

Employee - someone who works for someone else, follows instructions on how to perform tasks, and receives compensation for performing those tasks; an employee’s status can be full-time, part-time, temporary, or seasonal. [Note: entrepreneurs, independent contractors and small business owners with no employees are not part of this discussion.]

Job(s) - the term used in this discussion to identify all positions, including entry-level, skilled, and professional.

Telework 1) work from home or any remote location geographically separated from the employer’s edifice or office(s) and 2) make use of the internet, email, and telephones (landlines and cellular/mobile).

Teleworking - a work arrangement where supervisors/employers permit employees to carry out their usual tasks away from a centralized workplace.

Teleworker - an employee who has received approval to work from anywhere other than the main office for full-time, part-time, or some other agreed-upon period.

Older Workers with Disabilities

The paradigm shift from working 9 to 5 in an office to working “anywhere other than the office” started with younger workers and was largely ignored by older workers until March 2020. Across the employment board, older workers, both disabled and able-bodied, fell through the cracks because of their lack of skills qualifying them for teleworking. Many may never return to their former workplaces, and some will never return to any workplace. Lesson learned? Regardless of your age or disability, increase your chances to remain gainfully employed as a teleworker by acquiring tech-savvy skills.

The Transition

The COVID-19 Pandemic forced many employers to see that reasonable accommodations can also be viewed as practical accommodations as their employees transitioned from working out of brick-and-mortar facilities to working in a virtual environment. Let’s consider a hypothetical scenario.

Pre-pandemic: Employer ABC believed that an accommodation for someone with a disability who wanted to work remotely (telework) would result in an undue hardship because of the perceived difficulty or expense.

During Pandemic: Employer ABC provides accommodations (reasonable or otherwise) to all employees forced to work remotely just to keep the business afloat.

Post-Pandemic: Employer ABC now faces a dilemma when asking/requiring that the teleworking employees return to their offices/cubicles. Why? The employees expected to return to their former (pre-pandemic) work environment satisfactorily performed the same essential job functions while teleworking.

Policies Created at the Onset of the Pandemic 

Some policies, procedures, and processes that enabled the transition of the work environment from brick-and-mortar to virtual now need some re-thinking. Chaos offers the chance for advocates of teleworking to enter the fray, generate a meaningful dialogue, and achieve momentum by pushing the hiring of more workers with disabilities who want to telework. Education probably remains the key to reducing part of the ignorance within the business world about hiring folks with disabilities. An organization in a position to bombard businesses capable of hiring teleworkers with disabilities with materials that reduce their fear of hiring such workers, should proceed in a timely manner with such action and moreover, promote this action among peer organizations as a best practice.

Policies Related to Teleworking

Many teleworking policies drafted in haste at the onset of the pandemic reflected opinions and prejudices and in some cases, were void of a sound foundation based on science or empirical evidence. Ignorance remains pervasive in the commercial world when it comes to hiring persons with disabilities and providing them with the accommodations to which they are entitled by law. Hypocrisy partially accounts for permitting accommodations, previously considered unreasonable and detrimental to the financial health of the organization, to morph into necessities.

Laws and Guidelines Favoring Teleworkers with Disabilities

Federal Mandate

In 1990, Congress enacted the landmark Americans with Disabilities Act (ADA), “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” [2 U.S.C. § 12101(b)(1)]. 

In Olmstead v. L.C., the Supreme Court held that Title II prohibits the unjustified segregation of individuals with disabilities [527 U.S. 581 (1999)].

In 2009, the U.S. Department of Justice made enforcement of the integration mandate a top priority. In essence, Congress and the Supreme Court endorse the creation of “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible” [28 C.F.R. pt. 35 app. A (2010)].

Such an integrated setting must provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. The civil rights of persons with disabilities who have pursued teleworking positions have been protected by law for over three decades even though teleworking, according to today’s definition, did not exist when the ADA was passed.

Employment Guidelines

The Equal Employment Opportunity Commission (EEOC) issued guidance during the pandemic (9/07/2020) that did not go so far as to state that employees with disabilities who are asked to return to some type of work space should/must be granted telework as a form of reasonable accommodation. Rather, the EEOC guidance suggests such a decision as a possible outcome after engaging in the traditional ADA interactive process.

The EEOC stresses that:

“In light of the circumstances that led the need for telework, employers and employees should be both creative and flexible about what can be done when an employee needs a reasonable accommodation for telework from home.”

The EEOC, in some commentary, also seems to place the burden on the employer to demonstrate that continued telework would prevent the employee from performing essential job functions and would place an undue hardship on the company:

“The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new request in light of this information.”

Legislatures and Courts

Logically and even morally, immunocompromised individuals with disabilities working remotely should be exempt from being asked, or forced, to return to a workplace that could kill them. The current pandemic will be followed by other types of illnesses caused by nightmarish microorganisms. The immunocompromised and other high risk workers should never be forced to endanger themselves if the satisfactory alternative is teleworking. Legislation may be the ultimate answer to establishing such an exemption. In the meantime, we have the courts.

Court decisions shape and define laws and regulations one case at a time so inaction today because of dependence on some ruling way down the road is not applicable (at least not to this discussion of a call to action). Courts must deal with thorny predicaments like ruling on whether or not working out of an office constitutes an essential function of the particular job in question. Undoubtedly, such rulings by the lower courts will be neither consistent nor definitive.

The Role of the Government

Because of my own experience in working on initiatives emanating from a Governor’s Office or a Federal Agency, e.g. Pay Equity Commission, Environmental Issues, and Emergency Operations, I can state with confidence that emotions, not statistics, drive change. If whatever you support is not talked about by those close to the executive in charge, your work is for naught. Once members of the Governor’s cabinet get interested in a state project, say the greening of state government, the executive orders get drafted or in the case of pay equity for women, the legislation gets drafted.

Advocacy without pragmatism serves little purpose other than to stimulate intellectual discussions about research results or the numbers extracted from those results. You need executive support and funding for any big initiative to have even the slightest hope of succeeding. Fortunately, we are at the stage in the evolution of policy where “accessibility” is being examined as something that should figure into the diversity, inclusion, and equity equation. The President and many Governors are actively involved in this particular policy matter; therefore, we can count on a positive outcome.

State Agencies

Workforce centers and vocational rehabilitation organizations, funded with taxpayers’ dollars, need to determine innovative ways to introduce more job candidates with disabilities to employers, especially to those who allow or promote teleworking. State and federal agencies responsible for labor and employment matters need to tweak, or in some instances overhaul, some of their programs to create a better customer service experience for customers with disabilities. The U.S Department of Labor’s (USDOL) recent grants aimed at improving the Unemployment Insurance (UI) experience for customers with disabilities should be recognized as a step in the right direction. Part of the $2 billion in funding is earmarked to promote equitable access.

Assistive Technology

Availability: Assistive technology, including software, can be found in a state’s workforce centers (WFCs). The WFCs need to attract more customers with disabilities and unofficially engage in practices that resemble some form of affirmative action. In a simplified situation, let’s say the WFC has two able-bodied candidates available to present to an employer and one disabled candidate with the same requisite skills. The WFC should make sure the customer with the disability is presented to the employer despite any extra work that might be required on the part of the WFC, such as convincing the employer that the disabled candidate can perform the essential functions of the position. Equity of this nature for the disabled is long overdue.

Lack of Availability: Stating the problem that a significant number of people with disabilities don’t have access to the assistive technology necessary to navigate online job boards should start a conversation, not end it. In Colorado, cities and workforce centers are partnering with libraries to enable their customers with disabilities to check out technological devices, like laptops, along with their books, to facilitate job searches.

Any organization, private, public, or non-profit, should be welcomed to join in the push to encourage executive orders from Governors that incorporate persons with disabilities as part of the Diversity, Equity and Inclusion group and legislation that emphasizes flexibility in work arrangements that benefit workers with disabilities.

The Media

Can you imagine a scenario where workers with disabilities receive the same level of attention as certain protesting groups embraced by the traditional or social media? What about back to back television commercials featuring persons with disabilities or tweets by the millions raising substantive issues faced by disabled workers every day of their lives?

Teleworking and Discrimination

Certain workplace problems stem from discrimination on the basis of race, ethnicity, gender identity, and appearance, and involve civil rights protected by the Constitution and/or state statutes. These problems dissipate or disappear completely if you don’t turn on your camera for a virtual meeting when employees telework.

Closing Thoughts

Working remotely from home or any other remote location creates the greatest window of opportunity in history to increase the number of workers with disabilities. As part of the sea of change in the future of work, the challenge is to determine how to take advantage immediately of this unprecedented opportunity. While the window of opportunity may extend past the demise of the COVID-19 Pandemic, the best strategy is to act as soon as possible based on what we know today.

Closing Statement: A Call to Action 

Now is the time for a team effort in order to create pervasive awareness, while eradicating pervasive ignorance, that there are millions of qualified workers with disabilities ready and willing to telework.

THIS BLOG POST WAS WRITTEN BY REGION 8 ADVISOR Ron Arthur. Ron IS the state equal opportunity officer FOR colorado department of labor and employment

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The Rocky Mountain ADA Center's blog, Access Granted, tackles ADA issues through unique and diverse perspectives. Articles are written by staff of RMADAC and a variety of special guest authors. Some may be educational, others might be personal or thought-provoking. Either way, Access Granted will bring you the ADA of today!

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