Employment & Labor Insider

Generally, I favor letting employees work from home whenever possible and practical.

Livin' the dream . . .

"That cubicle farm is looking better every day."

My favorable disposition toward remote work goes double for an employee who needs to work from home as a reasonable accommodation under the Americans with Disabilities Act or another disability rights law.

But there are times when you, as the employer, may not have to grant such a request.

A recent decision from a panel of the U.S. Court of Appeals for the Fifth Circuit addressed this issue. The plaintiff – we’ll call him “Alfred” – clearly had disabilities within the meaning of the ADA. But the court affirmed dismissal of his lawsuit against his employer, who denied his remote work request and then terminated him for absenteeism “and other concerns.”

Alfred was an IT employee working for a U.S. Army contractor. When he was initially hired by the contractor’s predecessor, we were in the throes of COVID. 

"Hi! Me again!!!"

So Alfred was allowed to work from home full time at first. In February 2022, both the Army and the defendant contractor transitioned back to in-office work, and that's when the troubles began. According to the Fifth Circuit panel, Alfred was “overstimulated by his return to the office.” A couple of months later, “he was diagnosed with Autism, Major Depressive Disorder, and Social Anxiety Disorder.” A few months after that, he “was admitted to inpatient psychiatric care due to suicidal ideations.”

Again, no question that Alfred was a “person with a disability” within the meaning of the ADA.

In the fall of 2022, Alfred submitted a doctor’s note with a request that he be allowed to work remotely. His supervisor thought that would be OK, but the Army did not. And the Army was the contractor's boss.

The contractor tried letting Alfred work from home two-three days a week in December 2022-January 2023. But in mid-January, Alfred requested a medical leave of absence. A few days later, Alfred said that “he needed to work from home.” The contractor fired Alfred the next day.

Alfred tried to pursue legal action against the Army. That lawsuit was unsuccessful for largely procedural reasons. But his lawsuit against the contractor went forward.

Until last week, anyway. Now both lawsuits are over.

4 tips for employers

Here are four points for employers to keep in mind about remote work as a reasonable accommodation under the ADA:

Tip 1: The customer may control whether being on-site is an “essential function of the job.” In this case, the Army was calling the shots (pardon the pun). In the words of the court, “The Army determined that full-time teleworking was not in its interests, and as an Army contractor, [the contractor] had a business interest in honoring the Army’s conditions.”

Strengthening the contractor’s case, Alfred’s supervisor had allegedly been worried about “opening the floodgates” to full-time remote work requests from other employees assigned to the Army, which could “thereby potentially damage [the contractor’s] contractual relationship with the Army.”

Six times out of 10, anyway.

Tip 2: Even if you allowed (or required) remote work during COVID, you don’t necessarily have to allow it now. The fact that the Army and the contractor allowed full-time remote work during the pandemic doesn’t mean they had to continue doing so indefinitely. The panel quoted from a publication issued in 2023 by the U.S. Equal Employment Opportunity Commission, which stated as follows:

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace . . . for the purpose of protecting their safety from COVID-19 . . . does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.

The EEOC publication is available here (scroll down to D.15 for the quote).

Tip 3: Be consistent (within reason). In this case, the panel specifically found that all of the contractor’s employees who were assigned to the Army were required to work on-site after the COVID precautions ended. That helped to show that Alfred was not being singled out or sabotaged.

Of course, the very nature of “reasonable accommodation” often requires that the employee with a disability be treated differently from co-workers, so don’t be overly concerned about consistency. "The hobgoblin of little minds," and all.

Tip 4: You don’t always have to provide the accommodation that the employee requests. I blogged about this last month. In Alfred's case, the contractor got a pat on the back for allowing him to work from home 2-3 days a week, particularly given the court’s finding that he was asking for an accommodation that would alter the essential functions of his job.

In sum, the panel found that Alfred was not a “qualified” individual with a disability because of his inability to work on-site full time, or even 2-3 days a week. And since he wasn't "qualified," the contractor didn't have to accommodate him, even though it tried.

All that said: Be careful!

This was a nice win for the contractor, but you still need to be careful. Remote work will often be a reasonable accommodation in other situations.

Here’s a good rule to follow:

"If you think you may have to deny a request for accommodation,

run it by your employment counsel first."

I'm 99 percent sure Confucius said that. I need to put it on a sampler.

Until then, this is the best I can do.