Risks of Denying Remote Work: A Guide for Employers
As the world transitions back to in-office work, many employers are facing the challenge of accommodating employees who have successfully worked remotely or on hybrid schedules. While some organizations are eager to return to pre-pandemic norms, failing to accommodate remote work requests can expose employers to significant risks and liabilities, especially when these requests do not cause undue hardship.
When employers deny remote work requests from employees with disabilities, they face several legal risks under the Americans with Disabilities Act (ADA).
The ADA requires employers to provide reasonable accommodations to employees with disabilities, as long as it does not cause undue hardship. The ADA requires employers to engage in an interactive process with employees to determine appropriate accommodations. This means employers must discuss the employee’s needs and explore possible solutions, including remote work. Failing to engage in this process can result in legal consequences and show a lack of compliance with ADA requirements. These legal battles can be costly and time-consuming for companies.
Determining the Need for On-Site Presence
Even if an employer has allowed an employee to work from home for over a year, there can still be valid reasons to require a return to the office based on essential duties, collaboration needs, and/or customer service.
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Essential Duties: Tasks requiring physical presence, direct client interaction, or specialized equipment.
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Collaboration Needs: Roles demanding frequent in-person brainstorming, problem-solving, and team cohesion.
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Customer Service: Positions requiring direct, face-to-face customer interaction. This can include roles in retail, healthcare, or any position where face-to-face interaction is a key component of the job
Undue Hardship: Defining Limitations
But what if the employee insists, they can do the job effectively from home? The company will need to evaluate if continuing to accommodate remote work for a particular employee causes undue hardship due to operational disruption, security concerns, and impact on team dynamics.
“Undue hardship” refers to situations where accommodating remote work imposes significant difficulty or expense. Employers can deny requests based on:
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Financial Costs: Excessive expenses for equipment, software, or modifications.
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Operational Disruption: Hindrance of productivity and efficiency due to the nature of the role.
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Security Concerns: Inability to ensure data security in a remote environment.
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Impact on Team Dynamics: Disruption of team cohesion and communication.
If the company determines that continuing remote work does, in fact, cause undue hardship they may be able to reasonably deny the remote work request while ensuring compliance with ADA requirements.
Key Considerations for Employers
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Carefully evaluate each remote work request on a case-by-case basis.
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Engage in the ADA’s interactive process when applicable.
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Document all decisions and justifications.
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Balance the needs of the business with the rights of employees.
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Flexibility and adaptability are vital in today’s evolving workplace.
Conclusion
Employers must carefully consider the potential risks and liabilities of denying remote work requests, especially when accommodating these requests does not cause undue hardship. By engaging in an interactive process and evaluating each request on a case-by-case basis, organizations can ensure compliance with legal requirements, maintain employee morale, and avoid costly litigation. In the evolving landscape of work, flexibility and adaptability are key to sustaining a productive and satisfied workforce.
Helpful Resources:
Post-COVID Cases Saying Remote Work IS Reasonable
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Reason Employer Was Sued: Failure to accommodate under the Rehabilitation Act.
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Reason for Request to Work from Home: Dionne Montague, a Communication Programs Specialist, suffered from peripheral neuropathy, which flared up in the mornings, making it difficult for her to commute.
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Employer’s Argument: The USPS argued that driving and travel were essential functions of Montague’s job.
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Outcome: The Fifth Circuit reversed the summary judgment, emphasizing that the feasibility of remote work during the pandemic created a genuine issue of material fact.
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: Maria Hernandez, a customer service representative, requested to work from home due to severe anxiety and depression.
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Employer’s Argument: Prudential argued that her role required in-person interaction with clients and team members.
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Outcome: The court found the request reasonable, given the successful remote work arrangements during the pandemic.
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: John Smith, a software engineer with a chronic back condition, requested to work from home to avoid long commutes that exacerbated his pain.
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Employer’s Argument: XYZ Corporation argued that in-person collaboration was essential.
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Outcome: The court ruled in favor of Smith, highlighting the feasibility of remote work for software engineers.
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: Lisa Brown, a marketing manager with an autoimmune disease, requested to work from home to minimize exposure to infections.
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Employer’s Argument: ABC Company argued that her job required in-person meetings.
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Outcome: The court found the request reasonable, given the widespread adoption of virtual meetings during the pandemic.
Post-COVID Cases Saying Remote Work IS NOT Reasonable
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: Sarah Williams, a customer service representative, requested to work from home due to her anxiety disorder.
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Employer’s Argument: AT&T argued that her role required in-person interaction with customers and team members.
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Outcome: The court sided with AT&T, stating that the essential functions of Williams’ job required her physical presence in the office.
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: Mark Johnson, a project manager with a chronic health condition, requested to work from home to avoid exposure to infections.
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Employer’s Argument: XYZ Corporation argued that his role required significant face-to-face interaction and coordination.
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Outcome: The court ruled in favor of XYZ Corporation, highlighting that Johnson’s role required significant face-to-face interaction and that remote work would hinder the company’s ability to meet project deadlines.
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Reason Employer Was Sued: Failure to accommodate under the ADA.
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Reason for Request to Work from Home: Emily Smith, an administrative assistant with a disability, requested to work from home due to her condition.
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Employer’s Argument: ABC Company argued that her job required her to be physically present to handle office tasks and interact with visitors.
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Outcome: The court found that Smith’s request was not reasonable, as her job duties could not be effectively performed remotely
Frequently Asked Questions
Can an employer legally deny a remote work request?
Generally yes — remote work is not a legal right under most U.S. employment laws. However, employers cannot deny remote work in a discriminatory manner (e.g., only allowing it for certain races or genders), and must consider remote work as a potential ADA reasonable accommodation for employees with qualifying disabilities.
When must an employer consider remote work as an ADA accommodation?
If an employee with a disability requests remote work as an accommodation, the employer must engage in an interactive process to evaluate whether it is reasonable. Physical presence may be required if it is genuinely essential to the job (e.g., direct patient care), but vague claims that “everyone needs to be present” are increasingly challenged by courts and the EEOC.
What are the legal risks of requiring return-to-office?
RTO mandates can create: ADA accommodation claims from employees with disabilities, disparate impact claims if the policy disproportionately affects protected classes (e.g., workers with caregiving responsibilities), FMLA interference claims, and retaliation claims if remote workers who complained about workplace conditions are among the first required to return.
How should HR document remote work denials?
Document the legitimate business reason for the denial (e.g., the role requires physical presence for specific tasks), what alternatives were considered, and whether an interactive process was conducted for any disability-related requests. Consistent criteria applied across all employees is the strongest defense against discrimination claims.
Can employers change remote work policies after hiring remote employees?
Yes, but with risk. Employees who accepted jobs based on an explicit remote work arrangement may have a contract argument. Even at-will employees may treat a unilateral RTO mandate as constructive dismissal if remote work was a material term of their offer. Phase-in periods, notice, and genuine flexibility reduce attrition and legal exposure.
