Robin E. Shea is the chief legal editor and of counsel for Constangy Brooks Smith & Prophete in Winston-Salem, North Carolina.
You may be able to say no.
As an employment practitioner, I generally favor letting employees work from home whenever possible and practical. This is especially true when the employee 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 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 5th Circuit addressed this issue. The plaintiff 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.”
The plaintiff 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-19.
The plaintiff 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 5th Circuit panel, the plaintiff 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, there was no question that the plaintiff was a “person with a disability” within the meaning of the ADA.
In the fall of 2022, the plaintiff submitted a doctor’s note with a request that he be allowed to work remotely. His supervisor was inclined to grant the request, but the Army did not approve. And the Army was the contractor’s client.
The contractor tried letting the plaintiff work from home two to three days a week in December 2022 through January 2023. But in mid-January 2023, the plaintiff requested a medical leave of absence. A few days later, he said that “he needed to work from home.” The contractor fired him two days later.
The plaintiff tried to pursue legal action against the Army. That lawsuit was unsuccessful for largely procedural reasons. But his lawsuit against the contractor continued until May 2026, when the 5th Circuit affirmed dismissal of his claims against the contractor.
Remote work as a reasonable accommodation
Remote work is often, but not always, a reasonable accommodation under the ADA and other disability rights laws. As with all reasonable accommodations, determining whether remote work must be allowed depends heavily on the facts of the individual situation.
The relevant facts can include the employee’s specific disability; the employee’s job duties and whether they are capable of being performed from home; whether the employee has a safe and suitable home-work environment with a strong internet connection and other infrastructure; and whether the home-work environment is a place where the employer’s confidential information can be protected.
Another consideration should be the employee’s job performance, as well as the employer’s experience with the employee’s work ethic, ability to work with minimal direct supervision and communication and accessibility.
In some cases, customer demands may also be a factor, as they were in this case.
Four 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 in control. In the words of the court, “The Army determined that allowing 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, the supervisor had allegedly been worried about “open[ing] 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.”
Tip 2: Even if the employer allowed or required remote work during COVID, it doesn’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 pandemic was extraordinary, and employers had to make changes that they might never have considered making otherwise. In some cases, the shift to remote work turned out to be positive, and the employers chose to continue the arrangement post-COVID. In these cases, the employers would also have to consider remote work as a reasonable accommodation under the ADA.
But in other cases, remote work was not ideal, or even advisable, but was adopted only because the employer had no other real choice. Remote work adopted in an extraordinary circumstance does not normally obligate the employer to continue allowing remote work — even as a reasonable accommodation — once the situation has returned to normal.
Tip 3: Consistency is good (within reason).
In this case, the panel specifically found that all 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 the plaintiff 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 employers should not be overly concerned about consistency.
Tip 4: An employer does not always have to provide the accommodation that the employee requests.
In this case, the contractor got a pat on the back from the court for allowing the plaintiff to work from home two to three 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 the plaintiff was not a qualified individual with a disability within the meaning of the ADA because of his inability to work on site full time, or even 2-3 days a week. Because he was not qualified, the contractor did not have to accommodate him, even though it tried.
All that said: Be careful.
This was a nice win for the contractor, but other employers still need to be careful. Remote work will often be a reasonable accommodation in other situations.
A good general rule for employers to follow is this: If you think you may have to deny a request for reasonable accommodation, discuss it with your employment counsel first.
