Recent Federal Appeals Court Decision Reiterates That Full-Time Remote Work Is Rarely Reasonable Accommodation

For years following the COVID-19 pandemic, employers have been grappling with employee requests to continue working from home permanently and employee objections to returning to the office on a full-time or hybrid basis. A recent federal appeals court decision provides additional support for employers seeking to enforce in-person work requirements, including with respect to employees who request full-time remote work as an accommodation for a disability.

In Hayes v. GStek, Inc., the Plaintiff, an IT systems administrator for an Army contractor, was permitted to temporarily work remotely during the COVID-19 pandemic. However, in February 2022, the Army transitioned away from remote work and required employees of its contractors to resume in-person work. The Plaintiff, who was diagnosed with autism, major depressive disorder, and social anxiety disorder, asked that he be allowed to continue to work remotely as an accommodation for his disabling conditions. Although the Plaintiff’s employer, GStek, initially determined that he was likely to be able to continue to perform his job remotely, the Army concluded that allowing him to work remotely on a full-time basis would not be in its best interests. Consequently, GStek decided to allow the Plaintiff to work from home two to three days per week. He worked this hybrid schedule for approximately two months but then again advised GStek that “he needed to work from home.” GStek terminated the Plaintiff’s employment a few days later.

Following the termination of his employment, the Plaintiff sued GStek, alleging discrimination, failure to accommodate a disability, and retaliation in violation of the Americans with Disabilities Act (ADA). The lower court ruled in favor of GStek and dismissed the Plaintiff’s claims after concluding that he was not a qualified individual with a disability under the ADA, GStek had reasonably accommodated him when it allowed him to continue working remotely two to three days per week for two months, and his discrimination and retaliation claims were intertwined with his unsuccessful failure-to-accommodate claim. The Plaintiff appealed the lower court’s decision.

On appeal, the Fifth Circuit Court of Appeals agreed with the lower court. In doing so, the Fifth Circuit reiterated that the Plaintiff was required to show that he could perform the essential functions of his job in spite of his disability or that a reasonable accommodation would have allowed him to perform those essential functions. The court stated that courts are required to give “consideration . . . to the employer’s judgment” and should not consider an employee’s “personal judgment” when determining what job functions are essential. In this case, the Fifth Circuit concluded that in-person attendance was an essential function of the Plaintiff’s job because the Army had determined that allowing full-time remote work was not in its interests and the employer, an Army contractor, had a business interest in honoring the Army’s conditions.

The court also emphasized the “general consensus among courts . . . that regular work-site attendance is an essential function of most jobs” and that “[f]ull-time teleworking ‘is rarely a reasonable accommodation.’” The court further stated that the COVID-19 pandemic and the temporary remote work arrangements that resulted from the pandemic did not change that reality — and did not mean that an employer has to permanently change a job’s essential functions or that remote work cannot pose an undue hardship. The court also noted that the employer’s ability to supervise the employee is a factor that may be considered when deciding whether a remote work arrangement is reasonable, and it highlighted several situations in which the Plaintiff and his supervisor were unable to communicate effectively. Finally, the Fifth Circuit concluded that GStek had satisfied its accommodation obligations by allowing the Plaintiff to work from home two to three days per week, and the ADA did not require GStek to provide the Plaintiff his preferred remote work accommodation because it would require a change to the essential functions of the job.

This recent Fifth Circuit case confirms that employers may continue to treat in-person attendance as an essential function of the job and are not required to grant remote work requests under the ADA simply because employees have been previously allowed to temporarily work remotely. That said, employers should be sure that any in-person attendance requirements are well-documented in job postings and job descriptions and are enforced consistently with respect to similar jobs and circumstances. Employers must also ensure that accommodation-related requests for remote work are still evaluated on a case-by-case basis and should not automatically deny remote work requests based solely on the employer’s preference for in-person work. Any rejections of such requests must be supported by real and legitimate business interests and should be made only after considering the actual burden or hardship to the employer.    

As always, employers should consult with experienced employment counsel when questions arise regarding whether a particular remote work accommodation is reasonable.