Many organizations experience what employment attorney Jillian Cutler describes as flexibility fatigue. Speaking at a conference of the American Bar Association Section of Labor and Employment Law in November, Cutler said exasperated managers demand more boundaries and structure to remote and hybrid work.

Many organizations that gave greater freedom to telecommuters during the COVID-19 pandemic and in response to demands for greater workplace flexibility want to restore the structure and accountability of onsite work for many jobs.

Different studies provide different results on the efficacy of remote and hybrid work. Anecdotal evidence offers no help. For every employee who asserts they’re more productive left to work on their own, there’s a story about the employer who hears golf shots in the background during a virtual meeting. What is certain is work place culture has changed forever and remote work is here to stay.

But what happens when an employee seeks remote work as their accommodation of choice under the federal Americans with Disabilities Act (ADA) or Colorado Antidiscrimination Act (CADA)?

Speaking at the same ABA conference, Joyce Walker-Jones, senior attorney advisor with the U.S. Equal Employment Opportunity Commission, said the EEOC was reluctant to require remote work as an accommodation in the past because it hadn’t seen it work successfully. Things have changed post-pandemic, and the EEOC will remain more open to supporting remote work as a reasonable accommodation.

Recent court rulings demonstrate the impossibility of imposing a hard and fast rule favoring or disfavoring remote work as an accommodation. In one case, the court found an employee’s remote work pushed essential tasks onto onsite employees and the employee wasn’t adequately performing other job tasks. The court issued a summary judgment in favor of the employer. But in another case, an employer required employees to work remotely four days per week during the early stages of the COVID-19 pandemic. After the employer required employees to return to the workplace, an employee asked to continue to work remotely two days a week and be allowed extra breaks because her pulmonary condition put her at greater risk of contracting COVID-19. The EEOC filed a civil action when conciliation was unsuccessful, asserting her employer allowed similarly situated employees to continue working remotely. In December, the EEOC entered into a two-year consent decree with the employer that included a monetary settlement of $47,500.

Employers evaluating remote work as an accommodation should keep in mind several legal and practical points.

Employees are entitled to reasonable accommodations, but not necessarily the accommodations of their choice.
Are there other options for accommodations that address stated limitations and assist employees to perform the essential functions of their jobs?

The ADA anticipates an interactive process between  employees and employers to arrive at suitable accommodations. While employees might not be entitled to their first choice of remote work, neither may employers dismiss requests out of hand without exploring other accommodations. A take it or leave it offer by either the employee or employer isn’t permissible.

It’s more difficult for an employer to demonstrate remote work is unreasonable when the employee has worked remotely in the past. Was the remote work successful in the past? Did the remote work require the employer to shift essential job duties to other employees? Was the employee’s performance adequate during the previous remote work? And in the event of a legal challenge, has the employer documented these matters? Just because they worked remotely in the past, employees aren’t entitled to continue remote work. An employer should regularly review the accommodation to ascertain whether it remains reasonable. Have the essential functions of the employee’s job remained the same? Does the employee continue to perform job duties adequately?

Finally, courts won’t automatically punish an employer that initially exceeds what’s required to accommodate an employee when the employer eventually discontinues a particular accommodation. Many employers provided remote work early in the COVID-19 pandemic even though it wasn’t reasonable to do so on a long-term basis or permanently.
In one case, the employer continued to provide light duty to an employee for a full year after it was determined his disability was permanent and would prevent him from performing the essential functions of the job. The employer argued the 30-month period of light duty demonstrated his light duty was a reasonable accommodation. Despite the company’s willingness to exceed what the law required for so long, the court ruled  the employer couldn’t perform the essential functions of his job. Consequently, continued light duty wasn’t a reasonable accommodation.

The determination of whether or not a disability can be accommodated and what accommodations are reasonable involves a fact-by-fact inquiry based on the totality of the circumstances in each specific situation. Providing remote work as an accommodation might be reasonable in one instance and unreasonable in the next.

The Employers Council is available to advise its consulting and enterprise members in determining their responsibilities to accommodate disabilities.