Can the Genie Be Put Back in the Bottle? When Remote Work May Be a Reasonable Accommodation

Prior to the COVID-19 pandemic, if you had asked me whether large scale remote work was possible, I would have quickly said, “No.” I humbly admit that I was wrong. I was amazed and impressed how my own law firm, and our clients, pivoted on a dime to remote work. Now that we operate in a post-COVID-19 pandemic world, the question will forever be, “Okay, what now? Is remote work always the reasonable accommodation to be selected when it presents itself as an option?” Of course, the simple answer to this question is no. Employers still retain the control of when and where work is to be performed within the confines of the law. When it comes to remote work as a reasonable accommodation under the Americans with Disabilities Act (ADA), a decision in the last year from the U.S. Court of Appeals, Mobley v. St. Luke's Health System Inc., provides guidance to employers now that the remote work genie is out of the bottle.

Mobley suffered from multiple sclerosis (MS) and wanted to work remotely when his condition flared up. The employer did the right thing and engaged in an interactive process with Mobley about his request for a reasonable accommodation. The employer advised him that, although he would not be permitted to unilaterally work remotely when his MS flared up, he could request remote work on a case-by-case basis when he experienced flare-ups. Mobley only recalled one occasion when his employer denied a request to work remotely during a flare-up, requiring him to take time off instead. Mobley voluntarily resigned approximately six months after his employer afforded him the new remote work request process, claiming that he feared being discharged due to his condition. Despite this fear, Mobley admitted that he never voiced this concern to his employer.

Mobley then sued his employer under the ADA, asserting a failure to accommodate claim, along with claims under other state and federal laws. As to the ADA failure to accommodate claim, the Mobley court found that although continued remote work could be a reasonable accommodation for Mobley, Mobley failed to demonstrate that his employer “did not make a good faith effort to assist [him] in seeking accommodations.”

The court's opinion in Mobley provides a blueprint for employers handling remote work accommodation requests going forward. First, the employer engaged in an interactive process in good faith. As the court stated, “All the interactive process requires is that employers make a good faith effort to seek accommodations.” The Mobley court concluded, “Because there is no triable issue as to whether [Mobley’s employer] acted in good faith, we need not reach the final step of the analysis, which is whether [Mobley’s employer] could have reasonably accommodated Mobley.” Second, Mobley’s employer actually provided an accommodation—he could request to work remotely on a case-by-case basis. All his requests but one were granted. Per the court, Mobley’s employer engaged in the interactive process and took action to accommodate Mobley. Mobley’s employer never said her could not work remotely. Rather, it provided a different reasonable accommodation than the one desired by Mobley.

Based on the Mobley decision, the employer, not the employee, still gets to pick the reasonable accommodation. Nonetheless, the remote work genie is out of the bottle. In other words, it is unlikely that employers can, or should, make a blanket claim that in-person work is an essential function of the job for all employees in all situations. A more nuanced good faith approach is clearly required in light of what we all experience during COVID and in light of decisions like those in Mobley. [1]

In no particular order, here are few key tips when it comes to handling requests for remote work as a reasonable accommodation under the ADA in a post-COVID pandemic world:

Training is key. Train your human resources (HR) personnel and managers/supervisors on the appropriate means, manner, and method of conducting the interactive process (or to refer such to HR).
The “right” to remote work is not automatic. Not every employee with a disability is entitled to remote work as a reasonable accommodation. It is the employer, not the employee, that gets to choose the reasonable accommodation. If the employer can effectively enable the employee to complete the essential functions of their job without remote work as the reasonable accommodation, then the employer is free to choose that alternative reasonable accommodation.
The employer is not required to eliminate essential functions of the job. But be careful, and ask yourself if onsite work is an essential function of the job. For example, does the person manage all of their subordinates remotely? If so, then how is it that the employee being on site is an essential function of the job? There may be reasons. Just be ready to answer this question.
Do not presume that a hard and fast rule will always comply with the ADA. Use language that leaves open the door for the interactive process, especially when it comes to leave, remote work, and any other accommodations in this post-COVID-19 world. NOTE: “One size does not fit all situations” is a good rule of thumb for reasonable accommodations.
A temporary accommodation is not a permanent change of job duties. Allowing remote work during the pandemic does not automatically require an employer to permit remote work when employees return to the worksite post-pandemic. Under the ADA, accommodation requests are to be analyzed on a case-by-case basis.
Factually assess the reasonableness of the request and any undue hardship created before you deny remote work or other options as a reasonable accommodation and document the analysis.

Please contact Paul C. Sweeney or another member of Ice Miller LLP's Workplace Solutions Group if you have any questions regarding accommodations under the ADA, or the interplay between the ADA and other laws, such as the FMLA, GINA, and state leave laws.

[1] During COVID, the EEOC, in a published guidance, stated that temporary telework experience during the pandemic could be relevant to considering a renewed request for remote work. For example, the period spent teleworking during the COVID-19 pandemic could serve as a trial period to show whether an employee with a disability can satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. (See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” U.S. Equal Emp. Opportunity Commission (last updated July 12, 2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D.)

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.