Could increasing telework make government employment more accessible?

Broadened access to telework across the federal government after the pandemic could be a big win for federal employees with disabilities.

It’s one type of “reasonable accommodation,” or a change to the work environment that makes it easier for someone with a disability to do their job.

The disability community is no monolith, but people who have mobility issues that make it difficult to commute; employees who are immunocompromised; or those whose chronic illnesses are subject to flare-ups are examples of those who might benefit from a teleworking accommodation.

It remains to be seen how human resources and civil rights officials will respond to the potential of increased telework as a tool for accessibility as they prepare to return the workforce to offices.

Expanding access to telework has long been a goal of disability advocates, “basically since the internet was widely available,” said Philip Kahn-Pauli, policy and practices director at Respectability, a nonprofit disability advocacy group.

“So many people have requested telework over the 30-plus years of the [Americans with Disabilities Act] and often been told that it wasn’t reasonable. That you can’t do this job that way. That your employer needs to see you corporally every day,” said Rebecca Cokley, a program officer at the Ford Foundation who works on U.S. disability rights program strategy. Cokley previously held a number of federal positions, including director of the National Council on Disability.

The pandemic, however, has shown that for many jobs, teleworking works, advocates say. Almost 60% of federal employees were teleworking during the pandemic.

That forced experiment is “potentially a game changer,” Kahn-Pauli said. “The fact that everybody can work from home – it’s normalizing the accommodations process. Instead of being the exclusion, it makes it the rule.”

So far, agencies haven’t received direct guidance on how to approach teleworking as an accommodation after the pandemic.

President Joe Biden released an executive order in June on diversity, inclusion, equity and accessibility in the federal workforce. It tasked a new board with ensuring that processes for requesting and appealing reasonable accommodations are “timely and efficient,” but it didn’t address potential changes prompted by the pandemic.

A June 10 memo directing agencies on how to return to the office did hint at the “unique opportunity” to create a more “hybrid” workforce, but it didn’t mention how this might affect accessibility -- a “significant missed opportunity by [the Office of Management and Budget],” Cokley said.

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During the pandemic, many agencies have been operating under temporary exceptions to enable mass telework. Normally, feds with disabilities have to go through an individualized, lengthy, paperwork-intensive process with their supervisor to access it as an accommodation.

Workers with disabilities are entitled to accommodations under civil rights laws, so long as the change won’t be an “undue hardship” of “significant difficulty or expense” to the employer.

The pandemic could change what’s considered reasonable.

“Before the pandemic, federal agencies too often resisted telework as a reasonable accommodation for certain disabled employees on the unsupported claim that they could not perform the essential functions of the job remotely,” said Tony Reardon, national president of the National Treasury Employees Union, in a statement to FCW.

Now, said Robert Dinerstein, director of the Disability Rights Law Clinic at American University Washington College of Law, “it’s going to be harder for employers to maintain that telework means you’re not qualified to do the job when … in a lot of [industries] we’ve found you actually can do it.”

Ideally, as a best practice, there would be formal guidance telling agencies to grant teleworking accommodations as a matter of course, said Craig Leen, former director of the Office of Contract Compliance Programs in the Department of Labor and current partner at K&L Gates whose work includes equal employment opportunity, affirmative action and nondiscrimation compliance.

Agencies could expedite requests for accommodations and grant temporary ones to keep workers who have disabilities and want to access telework as an accommodation out of potential limbo as agencies reopen, he said. It would likely be a “big relief.”

The administration could also communicate changes informally via the Chief Human Capital Officers Council or the President’s Management Council, said Jeffrey Neal, former federal chief human capital officer and frequent commentator on federal workforce issues.

Even without any changes to the accommodations process or directions to grant flexibilities more readily, expanding telework generally could have an impact: employers with general teleworking programs have to provide workers with disabilities equal opportunity to participate.

When asked for a comment, the Office of Personnel Management referred FCW to the Equal Employment Opportunity Commission. EEOC press representatives referred FCW to three EEOC guidance documents.

An official at the Office of Management and Budget told FCW that “agencies are currently focused on developing draft plans regarding the safe reentry of employees and onsite contractors to the physical workplace, as well as post-reentry personnel policies and work environment.”

Those processes include “ongoing communications with employees across the agency and their representatives, as well as input from other stakeholders,” they said.

One of the EEOC documents addresses equal employment laws in the context of the COVID-19. Employers that granted telework to employees due to the pandemic don’t automatically have to grant telework as an accommodation after the health crisis subsides, it says.

But the guidance does note that “the temporary telework experience could be relevant” as a “trial period” to requests that were denied before the pandemic because of concerns that a job couldn’t be done remotely.

It also says that the pandemic may result in acceptable delays from federal agencies in their reasonable accommodations procedures.

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The possibility of increased accessibility, and the work needed to realize it, stretches beyond teleworking itself.

The federal government, one of the nation’s biggest employers of people with disabilities, has documented retention difficulties for those employees.

Of the feds with disabilities hired between 2011 and 2017, almost 40% stayed less than a year. Another 20% stayed less than two years, according to a 2020 Government Accountability Office report.

OPM has identified telework as a strategy agencies should use and publicize to retain workers with disabilities.

There’s also potential that at least some people with long-haul COVID-19 symptoms could qualify as disabled, a change that could dramatically expand the number of feds with disabilities in the federal workforce.

Pursuing long-term telework might require agencies to rework their telework plans, reevaluate office space needs and prioritize equipment and software for remote work.

They’ll need to make sure that remote employees get the same networking and social engagement as those working in the office, Cokley said. Already, government IT leaders are considering the long term infrastructure challenges of connecting a dispersed workforce.

“There is a huge opportunity to drive the kind of change that could really take federal employment into the 21^st century,” Cokley said. “But it’s also going to require the federal government not to treat COVID-19 with a short memory.”