Employers Need to Understand Remote Work as an ADA Accommodation

Remote work as an accommodation under the Americans with Disabilities Act has been overshadowed in the debates about productivity, culture, and collaboration. Employers need to be well-versed in the ADA accommodation process due to remote work being the number one accommodation requested by employees in 2024.

President Donald Trump recently issued an executive order requiring all federal employees to return to work in-person—making the federal government the latest entrant into the ongoing battle between employers and employees about remote work.

Companies are cracking down on remote work, both in their official policies and the enforcement of those policies. Amazon made waves when it announced workers were expected to be in five days a week, with a variety of companies following suit: JPMorgan, AT&T, Dell, Sweetgreen, and Boeing, among many others.

While the Equal Employment Opportunity Commission last issued guidance about remote work back in 2003, copious case law from the past four years has been instructive in how employers can and should respond to ADA accommodation requests for remote work today.

Here are four themes from the courts to keep in mind while evaluating remote work accommodation requests.

Changing the Calculus

The pandemic transformed the culture of remote work along with the proliferation of platforms such as Zoom and Teams. In Smithson v. Austin, for example, the court stated that Covid-19 “led to developments in work-from-home technologies that change the calculus for this assessment,” and whether in-person attendance is deemed essential must be analyzed prospectively “on a context-specific basis.”

A great example of technology fundamentally altering whether remote work was feasible can be seen in Brown v. Austin, in which the court initially ruled that the employee’s request to work remotely twice a week was unreasonable as he was required to work with sensitive, confidential documents onsite. The time and cost it would take the employer to scan all the documents and make them digitally available was deemed prohibitive. However, when this case came to trial, that was no longer true. The company had voluntarily shifted their work online and now had cybersecurity protocols in place that made the need to work with paper files in-person obsolete.

In-Person Jobs

Despite the shift to remote work and the advancements in technology, the courts have shown us that some jobs must be done in-person—even if they were temporarily conducted remotely during the pandemic. Teachers and guidance counselors are a prime example of this. Even though many educators were permitted to work from home in 2020, courts have ruled in cases including Dominguez v. Board of Education of the Yonkers City School District and Gullatt v. Henry County School District that in-person activities were essential functions of the job, even though they were suspended during the pandemic.

The courts have also shown that supervisor roles require in-person attendance. In Kinney v. St. Mary’s Health, for instance, the plaintiff was the director at a hospital responsible for supervising more than 100 onsite employees, something the court ruled the employee couldn’t do remotely.

Meeting Expectations

Whether it’s possible for a job to be done remotely is only one part of the equation, as the courts have also held that, not surprisingly, an employee working remotely must be able to perform their job capably. In McKinney v. Macomb County, the court highlighted that the worker struggled to work effectively in the office with the assistance of others and even a reduced case load. The request for remote work was denied as the employer worried about their performance.

We see another instance of this in Tiffanie S. v. Becerra where the EEOC, in a federal sector case, ruled that the employer didn’t violate the ADA in denying the worker’s work-from-home request given the employee’s subpar performance when working remotely previously.

Interactive Process

The most important theme for employers is to remember the interactive process. In our review of the case law, a meaningful engagement of the interactive process (or alternatively, a failure to do so) can truly make or break a case.

Even if an organization feels it’s common sense that a request be denied, they would most often be well served to, at a minimum, engage in some discussions and demonstrate a willingness to work with their employee. An unwillingness to engage at all was frowned upon by the courts. For example, in EEOC v. Total Systems Services, the court ultimately ruled for the employee saying, “It does not appear that [employer] engaged in any interactive process to assess [the employee’s] disability-related request.” Likewise, in Cowell v. Illinois Department of Human Services, the employer was found to have acted in “bad faith,” by failing to respond to the employee’s request for five months.

Going through the interactive process isn’t the employer’s only responsibility but doing so in a good-faith manner demonstrates that they take the request seriously and are considering solutions. At the risk of overgeneralizing, courts have generally looked favorably on employers that engage fully and consider options and alternatives.

We’re in an era of ongoing change and can expect many more court cases related to remote work accommodations. As employers navigate this uncertain territory, they would be wise to remember the key themes from recent cases.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Matt Morris is vice president of absence and accommodation compliance for ComPsych/FMLASource.

Jeff Nowak is shareholder at Littler where he provides employers with advice and counsel on how to minimize legal risk.

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