Many of our clients continue to develop and refine their remote work policies. Changes to employee expectations following the COVID-19 pandemic have made these policies a crucial recruiting and retention tool for many companies. Some employers have struggled with writing and enforcing policies that require employees to work in the office a certain number of days during the week.

Some policies we have reviewed mandate office work, but fail to provide for situations where a hybrid or completely remote working arrangement may be required by law. Under the Americans with Disabilities Act (ADA), remote work can be a form of reasonable accommodation for employees whose medical conditions make commuting or working in an office or other non-home environment impossible. Employers are expected to consider permitting remote work as a form of reasonable accommodation under the ADA if it allows the employee to perform the essential functions of the job without creating an undue hardship for the company.

Remote work policies that simply mandate a certain number of days in the office could run afoul of these ADA requirements. Regardless of the policy’s requirements, if remote work is deemed a reasonable accommodation, the employer is expected to grant exceptions to its office work mandates. In order to allow for this possibility, the remote work policy should contain language indicating that regardless of its terms, remote work may be allowed as an ADA accommodation pursuant to the employer’s disability accommodation policies and procedures. Adding this language can help avoid misunderstandings or claims by employees that the employer simply refused to consider a requested remote work accommodation.