How to Keep Telecommuting Employees with Disabilities Engaged

Allen Smith, J.D. By Allen Smith, J.D. July 19, 2021
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Employers that grant continued telework as an accommodation for employees with disabilities need to ensure that the workers are engaged and have the same promotional opportunities as others.

While employers may require in-person work for employees with disabilities in certain circumstances, businesses denying these employees' requests for continued telework must be able to show that there are no alternative accommodations and that ongoing remote work is unreasonable or results in an undue hardship on the employers. Undue hardship may be difficult to prove after all the remote work that took place during the pandemic.

"It would not be surprising if telecommuting requests increase," said Amber Rogers, an attorney with Hunton Andrews Kurth in Dallas and Houston.

"If HR decides to grant these requests, HR professionals will need to make special efforts to ensure that employees who continue telecommuting still will be engaged in all aspects of the employment relationship," said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. That includes staff meetings, onsite company meetings and the employer's educational offerings.

If teleworking employees with disabilities get lost in the shuffle and, as a result, lose out on promotional opportunities, the workers may have claims for disability discrimination.

Weigh the Options

"Many employees will want to continue teleworking on a full-time or hybrid basis," said Peter Petesch, an attorney with Littler in Washington, D.C. That desire may result from family or caretaking obligations, lifestyle preferences or disability-related needs.

Courts are starting to take a new look at telework as a reasonable accommodation, Petesch said.

"Before the pandemic, courts tended to take a critical view of teleworking, but changing technology and the experience of the pandemic—including the personal experiences of judges—could result in courts taking a more sympathetic view of telework as a reasonable accommodation for more jobs," he noted. "That said, while telework was permitted out of necessity during the pandemic, telework is not always ideal and there will be instances where what was good enough during the pandemic may no longer meet the needs associated with a particular job."

As with any accommodation request, an employer should discuss the request with the employee seeking continued remote work and determine whether teleworking is in order. "If the employee's disability does not require teleworking or another accommodation is appropriate, the employer can choose an alternative to telework," said Michael Futterman, an attorney with MARC Law in Florham Park, N.J.

Businesses should also realize that they do not have to continue to excuse employees from performing essential job functions, even if the employers may have had to do so during the height of the pandemic, he noted.

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Communication Tips

"If, however, employers grant requests to telecommute, they should take certain steps to ensure that those working from home are not discriminated against in promotional and educational opportunities or on any other basis," Futterman said.

Employers must ensure frequent communication with remote employees "so that they do not feel isolated or depressed and so that they are aware of workplace opportunities," he added.

Consider holding daily huddles or check-in meetings either in person or via Zoom, where remote employees can catch up on both personal and work issues and feel that they are not alienated from the office culture, he said.

"Communication beyond an e-mail or a text is key in these instances," said September Rea, an attorney with Polsinelli in Los Angeles. "Employers should continue to connect with remote workers with telephone calls and videoconferencing to encourage connection, which will in turn reduce the risk that these employees are left out of promotional and educational opportunities."

During the height of the pandemic, some new educational opportunities were available due to remote work, she added.

"It may have been cost-prohibitive for a less senior employee to shadow a more senior employee at meetings or presentations because of travel costs," she said. "When these presentations and meetings only took place over videoconferencing, shadowing and observing became … easier than ever. As a result, I saw expanded opportunities for mentoring and education, which in turn can assist in promotional opportunities."

In-person meetings are returning but employers should keep videoconferencing as an option, she said.

When chatting with remote workers, managers should dedicate part of the talk to personal or social conversation, just as they would when walking around the workplace each day to check in with onsite employees, said Caroline Larsen, an attorney with Ogletree Deakins in Phoenix.

She suggested other tips for keeping remote workers with disabilities engaged, including:

  • Establishing or expanding mentorship programs.
  • Using teleconferencing or other platforms for training.
  • Sharing all pertinent workplace information in a manner that ensures onsite and remote employees receive it at the same time.
  • Soliciting suggestions from remote workers about their concerns and how to help them feel involved and connected to their colleagues and leaders.

"There is always a danger to any individual who chooses or needs to telework of being out of sight, out of mind," Petesch said. "This exile or 'Siberia syndrome' could, in the longer run, inadvertently result in a flatter career trajectory."
Employers consequently will need to take conscious measures to be inclusive with teleworking employees.

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

Teleworker's Responsibility

"Some of that responsibility obviously falls on the teleworker too. In this respect, telework is a bit of a double-edged sword. While telework may enable more people to engage in productive work, there may be longer-term limitations in workplace engagement and opportunities," Petesch said.

"With anyone, employers need to think differently about keeping the remote workers engaged and visible, but remote workers also need to inject their presence into the workplace," he added. "It's very much a two-way street."

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