We continue to receive a large number of questions from clients on how to respond to employees who request a remote working arrangement as an accommodation of a medical condition. In many situations, these requests are made in response to an effort by the company to have employees who have been working from home to return to the office on a full-time or hybrid basis. Often, these questions involve concerns by the employer that the employees' productivity and performance have been negatively affected by their absence from the workplace.

Federal courts and the Equal Employment Opportunity Commission have made clear that remote work can be a required accommodation under the Americans with Disabilities Act. As with any ADA accommodation request, the employer must make an individual determination as to whether the job can be effectively performed from home, and whether this presents an undue hardship on the employer or co-workers.

Part of this determination involves an analysis of the employee’s job duties and whether the job’s essential functions can be performed on a remote basis. In some cases, the employer cites specific work tasks that cannot be effectively performed remotely. In others, the employers' concerns are more subjective, relating to teamwork, collaboration, and other factors that are less easy to prove.

When determining whether an accommodation interferes with performance of essential job functions, one of the best ways for employers to demonstrate this is through the written job description. Federal courts often defer to the company’s judgment on what is needed to complete the job, such as lifting, driving, or assisting customers.

If the employer believes that employees need to work on premises in order to effectively carry out these tasks, this should be reflected in the written job description. It’s not sufficient to simply state that the employee needs to work from the employer’s location. The job description should tie this need to the specific work functions. For example, a description for a receptionist could state that the employee’s functions include in-person greeting of visitors to the facility and the ability to answer questions and direct such visitors to the appropriate location.

A written job description will never serve as an absolute bar to a claim of failure to provide a reasonable accommodation under the ADA. However, a clear explanation of the employee’s need to work on premises that is prepared prior to the time a request for remote work is received can serve as powerful evidence that an employee who can only work remotely is not a qualified protected individual under the ADA.

For more information, please contact me or your regular Parker Poe contact. Click here to subscribe to our latest alerts and insights.