The New Battleground: Remote Work, Disability Accommodations, and the Evolving US Workplace
The American workplace is in the midst of a significant transformation, with the debate over remote work taking center stage. While companies increasingly push for employees to return to the office, a parallel trend is creating complex legal and practical challenges: the dramatic rise in requests for remote work as a disability accommodation. This collision is not only fueling a spike in discrimination complaints and lawsuits but also redefining fundamental concepts like \"essential job functions\" and pushing employers and HR professionals to re-evaluate their strategies. For US workers, job seekers, and employers alike, understanding this evolving landscape is crucial for navigating the future of work.
Remote Work: The Most Requested Accommodation
Remote work has undeniably become the most frequently requested disability accommodation in the US. Data from 2024, the most recent year for which information is available, highlights this trend, with requests soaring and disability discrimination complaints and lawsuits over remote work experiencing a significant spike, a trajectory expected to continue. This surge is understandable; the COVID-19 pandemic forced a widespread experiment in remote work, demonstrating its feasibility for many roles. This period of successful remote performance has, in turn, arguably redefined what constitutes \"essential job functions\" under disability laws.
The legal framework dictates that an individual must be able to perform the \"essential functions\" of their job, with or without reasonable accommodation, to be considered a qualified individual with a disability. Years of proven, successful remote work performance can now directly challenge an employer's assertion that physical presence is an essential function of a job, making this a central point of contention in accommodation disputes. The increased number of disability accommodation claims, reaching record highs in 2025 and continuing an upward trend since 2021, is significantly driven by the rollback of pandemic-era remote work policies.
The Return-to-Office Imperative and Its Legal Ramifications
Employers, emboldened by a desire to restore pre-pandemic norms and signals from high-level government offices, have increasingly issued return-to-office (RTO) mandates. For instance, in January 2025, a presidential memorandum directed federal executive branch departments and agencies to terminate remote work arrangements and require in-person attendance on a full-time basis as soon as practicable. This top-down push has cascaded into the private sector. Earlier this year, the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) issued a joint technical assistance document. While primarily aimed at federal employers, this guidance stressed that employers are well within their rights to no longer permit remote work, even if initially allowed as an accommodation, if the employee can be accommodated effectively in another way. The EEOC guidance, issued in February 2026, explicitly states that employers are not required to provide remote work solely for an employee's personal benefit and that if remote work prevents an employee from performing critical job duties, it is not a reasonable accommodation.
While employers generally have the right to dictate where work is performed, this right is not absolute when it intersects with disability law. As one attorney aptly puts it, an employee doesn't have a right to \"work in their pajamas.\" However, an employee *does* have a right to a reasonable accommodation for a disability or a sincerely held religious belief. Once such a request is made, an employer cannot simply say \"no.\" This creates a delicate balance, where the employer's prerogative to command an RTO meets the employee's right to accommodation, often leading to friction and legal challenges. This is particularly true when RTO mandates disproportionately affect protected groups, increasing the risk of discrimination claims under laws like the Americans with Disabilities Act (ADA) and Title VII.
The Shifting Sands of Judicial Interpretation
The legal landscape surrounding remote work accommodations is rapidly evolving, with federal court decisions reflecting mixed outcomes for employees challenging denials. Professor D'Andra Millsap Shu's comprehensive research, examining federal remote work accommodation cases over two-year periods (2021-2022 and 2023-2024), reveals a nuanced picture. Commentators had speculated that the \"mass remote work experiment\" of COVID would fundamentally change how courts assess claims denying remote work accommodation requests. However, Shu found that while technology has advanced, a full-blown retreat from the influential 1995 7th U.S. Circuit Court of Appeals decision in Vande Zande v. Wisconsin Department of Administration has not occurred. That case established a high bar, stating that an employer is not required to allow disabled workers to work at home where productivity would be greatly reduced, requiring a \"very extraordinary case\" to prove otherwise.
Indeed, Shu's research indicates that workers prevailed less often in 2023-2024 than in the preceding two years, with employers winning 94.4 percent of appeals and 60 percent of summary judgment rulings. Shu identifies several \"dubious evidentiary practices\" that courts are adopting, seemingly tilting cases toward employers:
- Still embracing the Vande Zande \"extraordinary case\" standard, adopting a presumption that remote work is inherently improper. This occurred in 13.2 percent of the cases she reviewed in the later period, up from 7.7 percent previously.
- Overly deferring to employer judgment regarding essential job functions and whether they can be performed remotely.
- Allowing employers to rely on blanket policies or preferences for in-office presence instead of requiring individualized assessments of an employee's needs.
- Discounting employee-provided evidence of successful work-from-home experiences during COVID, or that of their co-workers. Shu noted that when a worker's COVID-era remote work experience was discounted, the employer won every single time.
The 7th Circuit, ironically, has sent mixed signals. While it explicitly rejected the presumption against remote work based on COVID-era lessons in Kinney v. St. Mary’s Health, it later held in Smithson v. Austin that employers could simply designate in-person attendance as \"essential\" by fiat. How courts will reconcile this tension remains to be seen. While courts are still reluctant to act as a \"super-personnel department\" to re-examine business decisions, some judges are starting to pay closer attention to the specific facts of each situation, rather than automatically assuming in-person presence is required for almost every job. This indicates a subtle shift, even if an employee's prior success working from home doesn't always guarantee a win.
However, some victories for workers have emerged, particularly in cases where employees demonstrated a prolonged period of successful remote work. For instance, a Massachusetts federal District Court granted a preliminary injunction to an employee with asthma resisting an RTO mandate, and another plaintiff survived summary judgment on claims of wrongful termination after refusing a vaccine mandate and requesting remote work as a religious accommodation. In the latter case, the plaintiff had successfully worked remotely for 18 months, undermining the employer's claim of undue burden. This highlights a powerful argument for employees: \"It’s reasonable for me to work from home. I know that because I did for ever so long.\" This puts employers in a difficult position, forcing them to either argue that conditions have meaningfully changed (which often isn't the case) or that their previous accommodation was \"more than the law requires,\" a tricky dynamic to navigate.
For Employers and HR Professionals: Proactive Strategies to Mitigate Risk
Given the rising tide of litigation and the evolving legal landscape, employers and HR professionals must adopt proactive and strategic approaches to RTO mandates and disability accommodation requests. Ignoring these issues or adopting a rigid, one-size-fits-all approach is a recipe for legal exposure.
1. Master the Art of Job Descriptions
Job descriptions are no longer mere formalities; they are critical legal documents. Employers must give serious, thoughtful consideration to whether an in-office presence is truly an essential component of a job. This thinking should occur *before* an accommodation request arrives. Descriptions should precisely capture the essence of a job, clearly delineating essential functions and the reasons why in-person presence might be necessary, if applicable. A weak or outdated job description can easily undermine an employer's position in a legal dispute, especially if an employee has a track record of successful remote performance.
2. Foster Consistency and Centralized Knowledge
Inconsistent application of policies across different departments or managers is a significant legal vulnerability. It is crucial for organizations, especially larger ones, to have a coordinated strategy for reasonable accommodations. Centralized knowledge about company practices ensures that managers are not operating in silos, where one might be strict about RTO while another is more lenient. Such inconsistencies can lead to claims of discrimination, as employees might point to colleagues receiving accommodations they were denied for similar roles or circumstances. Ideally, HR departments should participate in all accommodation determinations to ensure uniformity and compliance.
3. Embrace and Document the Interactive Process
The \"interactive process\" is not a bureaucratic hurdle; it is a fundamental legal obligation and a powerful tool for finding solutions. Employers must engage in this process deliberately and thoughtfully. This includes:
- Standardized Request Forms: Implement a standard form for employees to submit accommodation requests. This ensures all necessary information is gathered upfront.
- Healthcare Professional Input: Collaborate with healthcare professionals to determine if an employee truly has a disability and to receive recommendations for effective accommodations.
- Exploring Alternatives: Remember that an employee is not entitled to their preferred accommodation, but rather an *effective* one. If remote work is not feasible, actively explore and propose alternative accommodations that would enable the employee to perform essential functions.
- Thorough Documentation: Document every step of the interactive process, from the initial request to all discussions, proposed solutions, and final decisions. This documentation is crucial evidence if a dispute arises, demonstrating that the employer satisfied their legal obligations.
Employers should not fear the interactive process but rather approach it with an open mind. Often, if both parties genuinely engage, a workable solution can be found, avoiding costly litigation. The EEOC guidance emphasizes the importance of an individualized assessment and a flexible interactive process, not blanket assumptions.
4. Re-evaluate Periodically and Avoid Blanket Prohibitions
While the EEOC states that pandemic-era accommodations do not automatically redefine essential job functions in a post-pandemic workplace, regular re-evaluation of significant accommodations, such as full-time remote work, can be beneficial. This ensures the accommodation remains effective and manageable, especially if job duties or operational needs change. However, employers must avoid blanket prohibitions on remote work, as these are risky and often lead to claims of disability discrimination. Each request must be considered on its individual merits, recognizing that for some roles and some individuals, remote work may be a necessary and reasonable accommodation.
For Workers and Job Seekers: Strengthening Your Case
As a worker or job seeker, understanding your rights and strategically preparing for accommodation requests is paramount in this shifting environment.
1. Understand \"Essential Functions\" and Document Your Capabilities
Before requesting remote work as an accommodation, thoroughly understand the essential functions of your job. Be prepared to articulate how you can perform these functions remotely, with or without accommodation. If you have a history of successfully working remotely, especially during the pandemic, meticulously document this experience. Gather evidence of your productivity, completed projects, and any positive performance reviews from that period. This evidence can be a powerful counter-argument to claims that in-person presence is essential or that remote work would reduce your productivity.
2. Initiate the Interactive Process Thoughtfully
When making an accommodation request, formally communicate your needs in writing. Be clear about your disability and how it limits you, and suggest remote work (or another accommodation) as a solution. Be open to discussing alternatives the employer might propose. Remember, the goal is an effective accommodation, not necessarily your preferred one. Engage constructively in all discussions and document every interaction, including dates, names, and what was discussed. If the employer uses a standard request form, complete it thoroughly.
3. Be Prepared for Pushback, But Know Your Rights
Employers may push back on remote work requests, especially with the general RTO trend. However, they cannot simply deny a request without engaging in the interactive process and demonstrating that remote work would pose an undue hardship or that it's not a reasonable accommodation. Understand that the law requires an individualized assessment, not a blanket denial based on company policy or preference. If you believe your rights are being violated, consult with an employment attorney who specializes in disability law. The limited number of reported decisions in these cases suggests many employers are settling out of court, indicating their recognition of legal exposure.
4. Consider the Impact of \"Proximity Bias\"
Even if an accommodation is granted, be aware of the potential for \"proximity bias.\" This is the tendency for managers to favor employees they see in person, potentially affecting career advancement, access to projects, or even performance reviews. While not illegal in itself, proximity bias can become a legal issue if it disproportionately impacts protected groups or if it is used to circumvent accommodation rights. Remote workers, especially those with accommodations, need to be proactive in maintaining visibility, demonstrating contributions, and ensuring their performance is measured by outcomes, not physical presence.
The Broader Impact on the US Labor Market
The complexities surrounding remote work as a disability accommodation have significant implications for the broader US labor market. For employers, navigating these waters effectively is crucial not only for legal compliance but also for talent attraction and retention. A company known for its flexible and accommodating approach may have a competitive edge in recruiting skilled workers, particularly those with disabilities, who represent a significant and often untapped talent pool. Conversely, employers with rigid RTO policies and a history of denying legitimate accommodations risk not only litigation but also damage to their employer brand and increased employee turnover. The reluctance of many employees to return to the office, even leading to \"quiet quitting\" or resignations, underscores the importance of flexibility.
For job seekers, the increasing legal scrutiny means that organizations will need to be clearer than ever about job requirements and accommodations. This transparency can help job seekers identify roles that genuinely align with their needs and capabilities. Candidates seeking remote work as an accommodation should be prepared to articulate their needs and demonstrate their ability to perform the job's essential functions remotely. For HR professionals, the task is multifaceted: developing robust, compliant policies, training managers on the interactive process, ensuring consistency, and staying abreast of rapidly changing legal interpretations. The increase in accommodation requests also means HR teams are under growing pressure to ensure accommodations are handled effectively, compassionately, and compliantly.
Ultimately, the ongoing tension between RTO mandates and the right to reasonable accommodation highlights the need for a thoughtful, individualized approach in the evolving American workplace. The courts are increasingly being called upon to resolve this tension between an employer's right to run its business as it sees fit and an employee's compelling evidence of their ability to perform essential job functions from home. The resolution of these \"edge cases\" will continue to shape the future of work, emphasizing that blanket policies are rarely sufficient in a diverse and dynamically changing workforce.