As the Covid-19 pandemic drifts further into the rearview, many companies are rolling back work-from-home policies and requiring employees to return to the office on a schedule similar to pre-pandemic office hours, with renewed attendance requirements. Many executives say their companies are more innovative and collaborative when employees are physically present in the office, which in turn increases revenue, productivity and employee retention.

After several years of work-from-home, however, some employees are opposed to return-to-office mandates. Employees seeking an exemption from such mandates to continue working remotely are increasingly citing mental health conditions such as anxiety, depression and post-traumatic stress disorder as justification for an accommodation. Companies implementing return-to-office mandates should be aware of potential liability issues when employees seek to continue working remotely.

Employees with physical and mental disabilities are protected from discrimination under Title I of the Americans with Disabilities Act (ADA). Under the ADA, if a disabled employee requests a workplace accommodation, the employer must engage in an interactive process with the employee to discuss the employee’s limitations and determine an effective and reasonable accommodation. Employers are entitled to seek certain information to verify an employee’s disability, disability-related limitations and need for the requested accommodation. If an employee has a qualifying disability, and there is a reasonable accommodation available that meets their needs, the employer must provide the accommodation unless it would pose an “undue hardship” on the employer.

Similarly, employers are not required to provide the specific accommodation requested or preferred by the employee. Employers may provide an alternative, less-burdensome reasonable accommodation instead, as long as it is effective in addressing the employee’s disability-related limitations. On the other hand, if an employee does not have a disability-related limitation that requires work-from-home, then employers do not have to provide work-from-home as an accommodation under the ADA.

Employers are often wary of work-from-home accommodation requests, and some companies worry that allowing some employees to work remotely and not others will stoke complaints about unequal treatment among the workforce. However, automatically denying an employee’s request to work-from-home as a disability accommodation without following the proper procedures can expose employers to discrimination claims. The number of charges alleging disability discrimination against employees with anxiety, depression, and post-traumatic stress disorder rose by at least 16% for each condition from 2021 to 2022, according to the Equal Employment Opportunity Commission. Data from multiple state civil-rights agencies also show that in recent years, discrimination complaints based on disability — encompassing a range of conditions including mental-health disorders, hearing impairments, and autoimmune diseases — have overtaken previous top complaints based on other protected classes such as retaliation and race discrimination.

The ADA does not require an employer to offer a work-from-home program to all employees. However, if an employer offers a remote work program, it must allow employees with disabilities an equal opportunity to participate in such a program. As with all accommodation requests, if an employee requests remote work as an accommodation, the employer should engage with the employee in an interactive process to confirm that the employee has a qualifying disability under the ADA and a disability-related need to work from home.

Possible questions for the employee may include: (1) how the disability limits or impacts their ability to perform their essential job functions; (2) how the requested accommodation will effectively address that limitation; (3) whether an alternative accommodation could effectively address their disability-related need; and (4) whether the proposed accommodation will enable the employee to perform the essential functions of their position.

Things to keep in mind:

• To be protected by the ADA, employees must be able to perform the essential functions of their position with or without reasonable accommodation. The ADA does not require employers to eliminate an essential job function as an accommodation for an individual with a disability.

• While employers may seek verification to confirm that an employee has a qualifying disability, employers are prohibited from asking for details about the employee’s disability and must keep interactive discussions with employees focused on the specific job functions affected by their impairment.
• The ADA’s reasonable accommodation obligation includes “modifying workplace policies” which might require an employer to waive certain eligibility requirements or otherwise modify its remote work program for someone with a disability who needs to work from home.

Employers are within their right to enforce return-to-office mandates but must consider reasonable accommodation requests by disabled employees who ask to be exempted from the mandate. Employers should ensure that they have proper policies in place for evaluating all employee accommodation requests, including requests to work from home due to a disability. Employers are encouraged to consult counsel to ensure compliance with the ADA and other applicable laws.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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