Legal Updates

Working From Home As A Reasonable Accommodation Under The ADA

March 2024

While prior technological advances made work-from-home arrangements (“WFH”) possible for many workers, it was not until the onset of the COVID-19 pandemic that WFH became normalized across many American industries. After the worst of the COVID-19 pandemic was over, many workers resisted returning to in-person work, with some arguing that the Americans with Disabilities Act (the “ADA”) entitled them to continue to work from home as a reasonable accommodation for a disability.

Perhaps because the pandemic demonstrated the feasibility of WFH across a broad range of industries, courts have begun to move away from the formerly established legal presumption favoring in-person work. Instead, recent court decisions have tended to engage in a more fact-specific and individualized inquiry as to whether WFH is a reasonable accommodation given the nature of the employee’s disability, the employee’s position, and the nature of the workplace itself.

In light of this trend, employers should conduct similarly individualized inquiries when deciding whether to grant WFH accommodations under the ADA and/or similar state statutes.

The ADA And Reasonable Accommodations

The ADA prohibits discrimination in employment against qualified individuals with disabilities. Among other things, the ADA requires employers to make “reasonable accommodations” for disabled individuals that would allow them to perform the essential functions of the jobs.

Applying this standard to the WFH context, if an employee (or applicant) with a medically documented disability claims that an employer failed to provide a reasonable WFH accommodation under the ADA, a court will analyze such factors as: (1) whether the disability prevents the individual from performing the job in the regular workplace; (2) whether the essential functions of the job can be performed from home; (3) whether the employer can provide a “reasonable accommodation” that would enable the employee to work from home; (4) whether the employer engaged in an “interactive process” with the employee to explore WFH and/or alternative accommodations; and (5) whether providing the requested accommodation would be an “undue hardship” for the employer.

Courts Have Stopped Treating WFH As Exceptional

In the past, courts applying the ADA to the WFH context often relied on a presumption that WFH accommodations were not reasonable. In more recent ADA cases, however, courts have recognized the normative shift towards WFH and employers’ increased capacity to arrange WFH accommodations. As a result, such courts have often rejected the former presumption in favor of in-person work. While this shift has not always resulted in decisions in favor of plaintiffs, it demonstrates a more nuanced approach to such issues by the courts, which employers should not ignore.

Recent cases that reflect this shift in perspective include the following:

• In Kinney v. St. Mary’s Health Inc., a 2023 decision by the United States Court of Appeals for the Seventh Circuit, the court expressly refused to rely on a presumption in favor of in-person work, citing technological developments and the increasing prevalence of telecommuting, such that WFH accommodations should not be viewed as “quite as extraordinary” as they were in the past. Instead, the court in Kinney held that whether a WFH arrangement is reasonable is “context specific.” Ultimately, the court found that the WFH request at issue was not reasonable under the ADA, based on the nature of the plaintiff’s job, which involved supervision of multiple coworkers and serving as a liaison between different parts of the department’s staff.

In arriving at its conclusion, the Court carefully reviewed the plaintiff’s job description, testimony from coworkers and supervisors, and Kinney’s own admission that the WFH accommodation would require others to carry out many of her duties. The court also found it significant that the plaintiff had not responded to the employer’s requests to try alternative accommodations to WFH.

• In another 2023 decision, Geter v. Schneider Nat'l Carriers, Inc., the United States Court of Appeals for the Eleventh Circuit did not even mention a presumption in favor of in-person work. Instead, like the Kinney court, the Eleventh Circuit simply applied the standard factors weighed in all disability-accommodation cases.

• Similarly, the United States Court of Appeals for the Sixth Circuit has recently relaxed the general rule set forth in its 2015 EEOC v. Ford Motor Co. decision, in which the court held that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs[.]” For instance, in a later decision, Hostettler v. Coll. of Wooster, the court stated that, “[a]lthough this court has stated that ‘[r]egular, in-person attendance is an essential function’ of most jobs,’ it is not unconditionally so; courts must perform a fact-intensive analysis.”

The central takeaway from these decisions is that courts have begun analyzing requests for WFH accommodations under the same general rubric as other ADA requests.

EEOC Guidance On WFH Accommodations

As these recent federal court decisions underscore, employers can no longer rely on a presumption that in-person work is an essential function for most jobs. Instead, employers evaluating WFH requests under the ADA must take a more nuanced approach. The Equal Employment Opportunity Commission’s (“EEOC”) guidance on telecommuting, issued in December 2017, provides employers with a good starting point.

While agency guidance does not have the force of law, the EEOC’s guidance is significant because it represents the most recent and most complete analysis of the WFH issue from the federal agency tasked with enforcing federal laws prohibiting workplace discrimination.

Some critical takeaways from the EEOC’s guidance on WFH include:

The ADA does not require employers to offer telework to all workers. However, if an employer does offer telework, employees with disabilities must have an equal opportunity to participate.

An employer may be required to permit an individual with a disability to telecommute only to the extent that the WFH arrangement is necessitated by the employee’s specific disability.

Employers may have to waive certain eligibility requirements or otherwise modify a telework policy for an employee with a disability who needs a WFH accommodation.

Reasonable accommodations may include permitting a disabled employee to work from home, even if the employer does not allow other employees to do so. However, an employer is not obligated to allow a disabled employee to telecommute if the employer can offer alternative accommodations that would permit the employee to work within the workplace.

Employers do not have to eliminate essential job duties to allow WFH accommodations. However, reassigning minor (nonessential) duties that cannot be performed outside the workplace may be reasonable, particularly if they are the only obstacle to WFH.

Recommendations For Employers

Taken together, the EEOC guidelines and the courts’ analyses of WFH accommodation requests under the ADA provide employers with a general – albeit somewhat hazy – road map for navigating such requests. It is clear, however, that employers may not rely on a default presumption that WFH arrangements are per se unreasonable. Rather, employers must evaluate WFH requests by disabled employees based on the same factors that apply to ADA accommodation requests generally.

With these points in mind, we suggest that employers consider taking the following steps:

Update all job descriptions, being careful to identify any essential functions that require in-person work;

Be prepared to evaluate requests for disability accommodations that involve WFH or hybrid versions of remote work, based on the employee’s specific circumstances;

Review and update WFH policies. In this regard, an employee who is permitted to telecommute as an accommodation for a disability can be held to appropriate expectations as to productivity, maintaining close communication with supervisors, and so forth; and

Stay alert for future developments in this constantly changing area of the law.

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If you have questions about WFH or other accommodation issues under the ADA or similar state laws, please feel free to reach out to one of our experienced employment attorneys.