Can’t I Just “WFH”? Best ADA Practices for Evaluating Remote Work Requests

In light of the recent uptick in return-to-work policies requiring physical presence in the workplace, accommodation requests under the Americans with Disabilities Act (ADA) for remote work have become increasingly common. Under the ADA, employers are required to provide reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability. In some cases, an employee may request to work remotely as a reasonable accommodation for a condition that qualifies as a disability under the ADA, such as anxiety, ADHD, or an immunocompromised status. To obtain this accommodation, the employee must demonstrate that they can perform the essential functions of the job with the proposed arrangement. If the employee meets this burden, the employer must provide the requested accommodation — or an equally effective alternative — unless the employer can show that doing so would pose an undue hardship to its operations.

Consider the following hypothetical, inspired by a recent case in the Middle District of Tennessee: Jane Doe is a senior administrative assistant who has requested a permanent remote-work accommodation due to binocular vision dysfunction, which makes driving to and from the office difficult. While this vision-related disability does not affect Jane’s ability to perform her job duties once she is in the office, she maintains that she could perform her role just as effectively from home. As the employer, you believe that Jane’s physical presence in the workplace is necessary for her to successfully meet the essential requirements of her position. What should you do next?

Engage in the interactive process

Whenever an employee triggers the protections of the ADA by requesting an accommodation or otherwise disclosing a disability, the employer is required to engage in the interactive process. This process involves a good-faith, collaborative dialogue between the employer and employee to determine whether the requested accommodation can be provided. If it cannot, the interactive process allows both parties to work together to identify an alternative but effective accommodation to the extent possible.

In the hypothetical above, you may want to consider if it is feasible to offer Jane a rideshare stipend as an alternative accommodation. If you provide other employees with a monthly parking benefit, you could instead redirect those funds towards Uber or Lyft credits for Jane. You might also consider offering a bus, train, or taxi stipend. If public transportation is readily available in your city, you could also explore adjusting Jane’s work hours to align with the transit schedules or allowing greater flexibility in her arrival time. Engaging in this type of good-faith, back-and-forth dialogue with Jane as part of the interactive process helps protect your company and maintains ADA compliance.

Isn’t it enough to say in-person attendance is a requirement of the job?

Not necessarily. Courts are reluctant to hold that physical presence is an essential job function simply because the employer says so. Instead, courts will conduct a fact-specific inquiry into an employer’s description of the job and how the job is actually performed in practice. For example, courts in the Sixth Circuit will often consider the following factors to determine whether a job duty is essential, which are referenced in the ADA regulations promulgated by the Equal Employment Opportunity Commission (see 29 C.F.R. § 1630.2(n)(3)):

• The employer’s judgment as to which functions are essential;
• The written job description;
• The amount of time the employee spends performing the function;
• The consequences of not requiring performance of the function;
• The work experience of past incumbents of the position; and
• The current work experience of incumbents in similar jobs.

Back to Jane Doe

Returning to our hypothetical, employers would want to have evidence in several of these categories to illustrate that in-person work is essential to performing the job.

• You will need to be able to articulate exactly why in-person attendance is essential to the position. For example, you might explain that a senior administrative assistant’s role is inherently on-site, as it requires in-person attendance to handle various on-site emergencies, such as helping with copier issues, greeting vendors and clients in person, or organizing supplies. The ADA requires the court to give some deference to the employer’s judgment regarding which job functions are essential (42 U.S.C. § 12111(8)).

• You should also ensure that you have a written job description in place that clearly identifies the position’s duties and whether on-site presence is required. For example, the senior administrative assistant job description might state that the essential functions include (1) receiving and assisting visitors; (2) ensuring that office equipment and facilities are in working order; and (3) assisting employees with the coordination and set up of meetings. Each of these essential functions provides strong evidence that physical presence in the workplace is necessary to perform the job.

• In the written job description, you may also want to include percentages or approximations of the amount of time the employee is expected to spend on each function, where appropriate. For example, documenting that greeting and assisting visitors constitutes the senior administrative assistant’s primary duty (occupying the largest portion of the employee’s time) would further strengthen the evidence that in-person attendance is an essential job requirement.

• You should be prepared to explain the practical consequences of allowing a permanent remote arrangement. For example, if Jane is normally the only administrative assistant on site, would other employees be required to step in to greet visitors or handle in-person needs? Would any portion of Jane’s responsibilities be shifted to other employees as a result of her absence? Importantly, an employer is not required to shift essential job duties onto another employee, so understanding these practical consequences is a key component of evaluating the accommodation request.

• Finally, you should consider how the role has been handled historically, including what prior employees in Jane’s position were permitted to do and whether there are any similarly situated employees who have been allowed to work remotely. Consistency or a well-documented reason for any differences can be an important factor in evaluating accommodation requests.

Being able to articulate the importance of in-person attendance, maintaining a detailed job description, and carefully considering the consequences of allowing the employee to work remotely are all key components in defending against an ADA failure to accommodate lawsuit. The employer’s beliefs alone are not enough; documentation and a thoughtful interactive process are imperative. If you would like guidance related to engaging in the interactive process with an employee or assistance drafting a strong job description, please reach out to a member of our team.