More employers are calling employees back to the office, but a return-to-office policy may not be the final word when an employee requests remote work as a disability accommodation. Recent court decisions are putting renewed attention on a familiar ADA question: Is being physically present in the workplace truly an essential function of the job?

Under the Americans with Disabilities Act, employers generally must consider reasonable accommodations that allow a qualified employee with a disability to perform the essential functions of the job. When an employee requests remote work as an accommodation, simply pointing to a companywide return-to-office policy may not be enough.

In Gardner v. Kutztown University, a professor with an autoimmune disorder sought to continue teaching remotely after the university reinstated an in-person requirement. The professor had already taught remotely for years. The university maintained that in-person teaching was an essential function of the position.

In August, the U.S. Court of Appeals for the Third Circuit concluded that there was enough conflicting evidence about whether physical presence was actually essential for the issue to be considered by a jury.

The decision does not mean employers must allow employees to work remotely whenever they request it. It does, however, reinforce the importance of being able to support the claim that physical presence is essential to a particular position as seen in another recent case.

Earlier this year, the Fifth Circuit found in Hayes v. GStek that in-person attendance was an essential function of an IT systems administrator's position. Among other factors, the employee worked for a government contractor whose Army client had determined that full-time telework did not meet its operational needs.

Together, the cases illustrate why employers should be cautious about treating every remote-work accommodation request the same way.

“We Have an RTO Policy” May Not Be the Answer

An organization can establish expectations about where employees work. But when an employee requests an exception because of a disability, HR may need to move from the company's general policy to an individualized assessment.

Consider questions such as:

• What are the essential functions of this particular job?
• Which duties genuinely require physical presence?
• How frequently must those duties be performed?
• Has this employee or someone in the same position successfully performed the job remotely before?
• What does the job description say?
• What operational problems would remote work actually create?
• Could another accommodation address the issue?
• Would the requested accommodation create undue hardship?

• The answers may look very different for a production supervisor, receptionist, software developer, salesperson, accountant, or HR professional.

Your Pandemic History Could Matter

One of the more complicated issues for employers is that the pandemic created several years of evidence about what jobs can and cannot be performed remotely.

If an employer argues today that an employee absolutely must be physically present to perform a particular function, but employees successfully performed that same function remotely for several years, HR should be prepared to explain what has changed.

That does not mean pandemic-era remote work proves that remote work is always reasonable. Productivity, collaboration, supervision, customer needs, technology, staffing and job responsibilities may have changed.

But employers should be able to articulate those reasons rather than relying solely on a general preference for employees to be in the office.

Review the Job, Not Just the Policy

Return-to-office policies can establish an organization's normal workplace expectations. ADA accommodation requests require another layer of analysis.

For HR, the takeaway is to avoid automatically approving or denying remote-work requests based solely on the organization's broader RTO policy. Review the employee's position, identify and document its essential functions, engage in the interactive process, and evaluate the requested accommodation based on the specific circumstances.

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Sources: Bloomberg Law; Justia Law