Many employers instituted work from home policies during the pandemic that they are now fine-tuning or rethinking. While telework technology advances and return to onsite work initiatives unfold, employers must navigate part-time and full-time remote work requests, including ones lodged under the Americans with Disabilities Act (ADA). This article outlines how to navigate a request for remote work related to a disability with examples of recent decisions that impact employers in Colorado.
Generally, a remote work accommodation request should be processed like any other accommodation request. The ADA requires employers to provide reasonable accommodations to disabled employees that will allow them to perform their essential job functions, so long as such accommodation does not constitute an undue hardship for the employer. An employer’s failure to provide such accommodations, or actions an employer takes against an employee in response to such a request, may result in a claim under the ADA for disability discrimination or retaliation. As a result, each remote work accommodation request must be considered individually even if the employer has a policy that generally prohibits working from home.
A remote work accommodation request begins when the employee gives adequate notice. Employers are not required to solicit input from employees on whether onsite work will conflict with a disability, even when implementing sweeping policies, including returning to the office, (RTO). Similarly, an employee does not need to mention the ADA in making a remote work accommodation request. For example, employers should be prepared for emails to a supervisor or a human resources officer requesting temporary or permanent remote work due to a medical procedure, illness, or accident.
If an employer wants to refuse a remote work accommodation request, it can only do so on three grounds: 1) the request is not bona fide; 2) it conflicts with an essential job function; or 3) it would create an undue hardship on the company. In each of these instances, employers should generally avoid answering “no” at the outset and begin the “interactive process.” The “interactive process” is an informal procedure during which an employer and an employee identify the precise limitations resulting from a disability and potential reasonable accommodations that could overcome those limitations. In a 2024 case before the Denver District Court, the employer answered the employee’s out-of-state work request with a “no” rather than exploring whether plane travel could allow the employee to appear for infrequent onsite duties. Because the employer did not continue engaging in the interactive process, the court left it up to a jury to decide whether the company made the appropriate decision.
Above all, the employer should be fair and consistent in how it approaches remote work accommodation requests. In a 2023 case in the Federal Court for the Western District of Oklahoma, the court allowed a lawsuit for racial discrimination to move forward because of testimony that the employer treated the employee “differently than other employees with respect to the procedure for completion of her telework accommodation request.” Written criteria are typically easier to apply fairly than case by case determinations.
Oftentimes the best way to say “no” to a remote work accommodation request is to say “yes” to a reasonable alternative accommodation. The ADA requires employers to give reasonable accommodations, it does not require them to provide an employee’s choice of accommodations. Sometimes a standing desk, adjusted hours, or other modifications can accommodate a disability that would otherwise require granting a remote work, and the interactive process helps employers and employees identify these solutions. The Federal District Court in New Mexico decided in 2024 that a company should respond to an employee’s requested accommodation even if it ultimately decides that an alternative accommodation better fits organizational needs. It is important to have a conversation; employers should listen to employees’ concerns and explain how, compared to remote work, the alternative accommodation helps meet the needs of the company while still accommodating the employee.
If an employee contests the denial of a remote work accommodation request, employers have the burden of proving that remote work would conflict with essential job junctions. Courts have found such conflicts when an employee works as part of an onsite team, engages in face-to-face interaction with clients or other employees, interacts with onsite equipment, or handles sensitive information.
A Concrete Takeaway: Update Job Descriptions
To this end, employers should regularly update and specifically address onsite/in‑person work expectations in job descriptions. In a 2024 decision from the Federal District Court for Kansas, the court noted that the absence of an onsite requirement in a job description indicates that onsite work may not be required. On the other hand, in a 2024 decision from the U.S. Court of Appeals for the Tenth Circuit (which includes Colorado), the court noted that this job description indicated that onsite presence was essential: “physical attendance for a minimum of 40 hours per week and the ability to interact with co-workers.”
The description should reflect reality and can leave room for flexibility in cases where some degree of remote work is permitted (e.g., “This position requires onsite presence at least four days per week with additional onsite work sometimes necessary”). Courts have been clear that the text of a job description does not override reality. For example, the Tenth Circuit in 2021 noted that a job description does not need to list onsite work as a requirement if it is obviously required (e.g., for certain healthcare positions). On the other hand, declaring that it is essential for a position (e.g., a computer programmer) to be onsite five day a week does not make it so if the employer cannot prove that onsite presence is essential.
