If there is one sentence that now defines post‑pandemic accommodation litigation, it is this: “You let me do it before!” Employers that allowed widespread remote work during COVID‑19 now face a legal landscape in which those past decisions are not just historical facts—they are powerful evidence.

Two recent cases—decided less than a year apart—underscore a growing reality for employers navigating return‑to‑office (RTO) policies: the legality of denying remote work as an accommodation depends less on broad policy and more on process and proof. Together, these cases illustrate that courts are not issuing categorical rules on remote work. Instead, they are examining the underlying process employers follow in handling accommodation requests. In other words, the courts are requiring that employers handle requests for remote work accommodations as they should handle any other requested accommodation, by engaging in the interactive process.

Two Cases, Two Outcomes

In Smith v. District of Columbia (D.D.C. Aug. 13, 2025), the employee, previously diagnosed with breast cancer for which she underwent extensive treatment, had worked remotely for an extended period during the COVID‑19 pandemic and received strong performance evaluations. When the employer transitioned back to in‑person operations, the employee requested continued remote work as an accommodation under the Americans with Disabilities Act (ADA). Specifically, she requested either complete remote work, or a modified in-person/remote schedule. The employer denied the request, citing essential in‑person job functions and undue hardship. The parties submitted competing evidence as to both. On the topic of in-person job functions, the employer identified a list of not less than 18 public-facing job functions that required the employee to be in-person. On the topic of undue hardship, the employer offered unchallenged evidence of 10 openings for positions similar to the employee’s, thereby leaving a quarter of said positions vacant.

The employee countered the employer’s claim of in-person work being an essential job function with evidence of all clerks holding positions similar to hers working on a rotational basis, alternating weeks of on-site and remote work. As to undue hardship, the employee countered the employer’s evidence with testimony from her leadership team that her “teleworking does not present a hardship to operations” of her branch. The court denied summary judgment, finding genuine disputes regarding whether in‑person work was truly essential, and holding that the employee presented sufficient evidence for a jury to conclude that the on-site elements of the job were marginal.

As to whether remote work would impose an undue hardship, the court likewise held that the employee submitted sufficient evidence creating a jury question. The court noted that the employer’s arguments fell short because it never explained, or presented evidence, as to how the openings created an undue hardship, or how often the employee was required to assist others with in-person public facing tasks. The court also found it significant that the “record does not contain an explanation as to why [the employer] rejected [the employee’s] accommodation request” of three days on-site, and two days remote during her on-site weeks. The opinion noted the employee’s manager rejected this suggestion quickly, “in a tersely worded e-mail,” which stated that the employee’s request “[was] not an ADA matter.” The court noted “it plainly was.”

In contrast, the Fifth Circuit’s May 8, 2026, decision in Hayes v. GStek, Inc., affirmed judgment on the pleadings for the employer where the employee rejected his employer’s offer of a hybrid work arrangement and sought full‑time remote work following a temporary pandemic-era telework arrangement. Hayes worked for U.S. Army contractor GStek. After being asked to return to the office, Hayes was diagnosed with autism, major depressive disorder, and social anxiety disorder.

The court held that in‑person attendance was an essential function of the plaintiff’s role, emphasizing both the employer’s judgment and the operational requirements imposed by its client, the U.S. Army, which retained control over whether contractor employees could telework. The court further stressed that temporary remote work during COVID did not alter the essential functions of the job and that full-time telework is “rarely a reasonable accommodation” where it would eliminate those functions. Critically, the employer had offered a hybrid work arrangement—allowing the employee to work remotely two to three days per week—which the court deemed a reasonable accommodation satisfying the ADA. Because the requested full‑time remote work would have excused an essential function, and because the employer provided an effective alternative, the employee was not a “qualified individual,” and his failure‑to‑accommodate claim failed as a matter of law.

Why Hybrid Work Was Considered Reasonable

Hybrid work was deemed reasonable in Hayes for three independent reasons grounded in the Fifth Circuit’s framework. First, it preserved the essential in‑person function while still accommodating the disability. The court’s analysis turns on the premise that regular on‑site attendance was an essential function of the job, driven not just by employer preference but by the Army’s operational requirements and contractual control. Because full‑time remote work would have eliminated that essential function altogether, it was not a reasonable accommodation. By contrast, the hybrid arrangement—two to three days of telework—allowed Hayes to perform at least part of his duties remotely without excusing the core requirement that he report in person. In other words, the accommodation was reasonable precisely because it did not fundamentally alter the job.

Second, it enabled performance of the job (to the extent possible) rather than excusing performance. The ADA requires accommodations that allow the employee to perform the essential functions, not avoid them. The Hayes court emphasized that where “there is no available reasonable accommodation” that would allow performance of essential duties, the employee is not “qualified.” Hayes involved an accommodation that attempted to bridge the gap—permitting remote work part of the week while still requiring presence for duties tied to the physical workplace, supervision, and coordination. The hybrid schedule thus satisfied the statute because it was an effort to facilitate performance, not excuse it.

Third, the proposed hybrid schedule was an effective accommodation even if not the employee’s preferred one. The court squarely held that GStek satisfied its statutory obligation by offering hybrid work, and that the ADA does not require an employer to provide the employee’s preferred accommodation. Hayes’s insistence on full‑time remote work did not undermine the reasonableness of the hybrid arrangement; rather, it underscored that the employer had already met its obligation by offering a workable alternative. The fact that Hayes rejected that alternative was legally irrelevant.

The Real Issue: Process, Not Preference

Although the outcomes differed, both decisions rely on a common core principle: the adequacy of the employer’s interactive process. Courts are increasingly focused on whether the employer engaged in a case‑specific, well‑documented evaluation of the accommodation request, rather than relying on blanket policies or generalized assertions.

In Smith, the employer’s position was weakened by evidence suggesting that remote work had previously been effective. In Hayes, the employer’s success was grounded in its willingness to offer a reasonable alternative and its ability to articulate why full‑time remote work was not necessary.

Key Takeaways for Employers

• Courts are not adopting blanket rules on remote work—outcomes depend on facts and process.
• Prior remote work can undermine an employer’s argument that in-person work is essential.
• Employers are not required to provide an employee’s preferred accommodation if a reasonable alternative exists.
• The interactive process—and how well it is documented—is often the dispositive issue.
• Hybrid arrangements remain a defensible middle ground in many cases.

Practical Implications for Employers

These decisions provide several practical takeaways for employers navigating RTO policies and accommodation requests:

• Document essential job functions before disputes arise.
• Avoid blanket RTO policies that foreclose individualized assessment.
• Treat prior remote work arrangements as a fact that must be explained—not ignored.
• Ensure consistency across managers and departments.
• Carefully document the interactive process, including alternatives considered and reasons for decisions.

Conclusion

The question facing employers is no longer whether remote work is generally feasible. Instead, it is whether, in a particular case, the employer can demonstrate a thoughtful, consistent, and well‑documented process for evaluating an employee’s request. As Smith and Hayes show, the difference between liability and an employer’s ability to manage essential functions of a job may hinge less on the policy itself and more on how it is applied.

Please contact Paul C. Sweeney or another member of Ice Miller's Workplace Solutions Group if you have any questions.

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.