Reasonable accommodation at work: telework and reduced hours for a person with a disability

When an employee with a disability requests an accommodation in order to be able to work, the employer's answer is not a favor. It is the application of a legal duty. A recent decision by the Regional Labor Court of the 2nd Region (São Paulo) helps outline that duty and, at the same time, shows how to handle the request the right way.

The case

A web-developer employee, a person with a disability, with Autism Spectrum Disorder (ASD) and comorbidities, asked to work under a telework arrangement and with reduced hours. The in-person environment caused her a sensory overload incompatible with her condition, documented by extensive medical evidence.

The 17th Panel of the TRT-2 dismissed the employer's appeal and upheld full telework and a 30% reduction in working hours, with no salary cut, along with moral damages and payment for the period of "social-security limbo."

The duty of reasonable accommodation

The core of the decision is the duty of reasonable accommodation, set out in Law No. 13,146/2015 (the Brazilian Disability Inclusion Law) and in the UN Convention on the Rights of Persons with Disabilities (Decree No. 6,949/2009). This duty requires the employer to implement accessibility measures, which may include telework and reduced hours, when necessary to secure the right to work of the person with a disability. The Labor Code reinforces this by giving priority to persons with disabilities in telework (Article 75-F).

In the reporting justice's words, the employer's managerial power is legitimate, but it is not absolute: the duty of inclusion prevails over internal rules or regulations that fail to address the specific needs of the person with a disability. In other words, the absence of a provision in an internal regulation or a collective agreement is not, in itself, a justification to deny the accommodation.

The duty always exists, but the test is feasibility

This does not mean an unlimited obligation. The Disability Inclusion Law itself defines reasonable accommodation and carves out situations of disproportionate or undue burden. The duty always exists; the concrete measure depends on a feasibility test, case by case. The right question is not "is there an internal provision?", but "is it feasible, within this company's structure, to meet this need without a disproportionate burden?".

In the concrete case, that test worked against the employer, because of two objective facts. The company had already operated fully remotely during the pandemic, which proved the technical and organizational feasibility of telework. And the role, in web development, is internal and involves no contact with the public. The structure, therefore, already accommodated what was requested.

A procedural warning

There is also a procedural lesson. The employer tried, only on appeal, to claim a denial of defense for the lack of an expert examination and a biopsychosocial assessment. But it had agreed to the close of the evidentiary phase, without objection. The court recognized the preclusion, in the figure known as the "pocket nullity": holding back an argument for the most convenient moment violates procedural loyalty and good faith. Evidence and objections have their proper time.

The cost of denying wrongly

Denying a due accommodation, by reflex or for lack of an internal provision, tends to be costly. Here, beyond the telework and the reduction in hours, the award included moral damages and the social-security limbo period. A refusal only holds up when grounded in a serious, documented analysis of infeasibility, not in an automatic denial.

How to handle an accommodation request

In practice, the safe path for the employer has a few steps:

• Receive the request and the medical documentation seriously, without a reflex denial.
• Assess the concrete feasibility of the measure within the company's structure, considering the role, the available technology and the real impact (the disproportionate-burden test).
• Document the process: the dialogue with the employee, the alternatives considered and the reasons for the decision.
• Seek the appropriate solution, which may be the requested measure, an equally effective alternative or, where a disproportionate burden is demonstrated, a reasoned refusal.

The scale of the decision

It is important to place its reach. This is a decision by a panel of a TRT (second instance), with the employer's appeal dismissed, still subject to appeal. It is not a binding thesis nor a consolidated nationwide position. The defendant was a professional council, but the duty of reasonable accommodation under the Disability Inclusion Law also reaches the private sector.

How the firm works

Structuring inclusion policies, conducting reasonable-accommodation processes and defending companies in cases on accessibility and discrimination are part of the firm's corporate employment practice. Each case, however, depends on its own circumstances, the facts and the documents.

Conclusion

Including a person with a disability at work is a legal duty, not a favor. Managerial power remains legitimate, but it yields to that duty when the accommodation is feasible. For the employer, the stance that protects is the one that also makes sense: receive the request seriously, assess feasibility with judgment, document, and decide with grounds. The question that opens the right path is not whether an internal rule exists, but whether the company is able to meet the need.

Reference basis for review

• Law No. 13,146/2015 (Brazilian Disability Inclusion Law), Articles 34, 37 and 79, and the concept of reasonable accommodation with the carve-out for disproportionate or undue burden.
• UN Convention on the Rights of Persons with Disabilities (Decree No. 6,949/2009).
• Labor Code (CLT), Article 75-F (priority of persons with disabilities in telework).
• Ruling of the 17th Panel of the Regional Labor Court of the 2nd Region, reporting Justice Debora Cristina Rios Fittipaldi Federighi, which upheld full telework and the reduction in working hours.
• Brazilian Bar Association Rule (Provimento OAB No. 205/2021), to preserve the informational nature of the content.

Content of a merely informational nature. It does not constitute legal advice, an offer of services or a promise of results. Any concrete analysis depends on the facts, the documents and the context of each case.