Working Remotely: Reasonable Accommodation or Mere Convenience?
7.14.2025
During and since the COVID-19 pandemic, employees have performed their jobs remotely to an extent never before seen. As a result, a controversy over whether employees can carry out their responsibilities as well from home as in the office or other work site has been simmering. Employers’ experiences with remote work to date certainly suggest that for at least some occupations, employees are in fact as effective at performing their duties when working at home as opposed to in the workplace. The debate over remote work, which has resulted in considerable litigation, has been particularly heated in cases where the employee is disabled and asserts that while their condition prevents them from being in an office or other workplace environment, they nonetheless can effectively perform the essential functions of their job working remotely. As discussed below, courts have become less receptive to employers’ arguments that physical presence in the workplace is per se an essential function of most employees’ jobs.
Discrimination that violates the Americans with Disabilities Act includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”[1] The ADA defines a “qualified individual” as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position” that that individual holds.[2] If an employee demonstrates that they can perform the essential functions of the job with or without a reasonable accommodation, the employer must then show that providing the accommodation sought would pose an undue hardship to it.[3]
There are many measures that can constitute reasonable accommodation permitting an employee to perform the essential functions of one’s job, and one of the most common is remote work. In part because of widespread telecommuting during the pandemic, as well as advances in technology that make telecommuting easier, remote work accommodations have become, as noted above, increasingly prevalent. Remote work accommodations range from working at home full-time to doing so only one day per week or less.[4] At the present time, many employers are insisting that all of their employees again be physically present at the office – a development that has presented challenges for disabled employees whose health conditions make it difficult or impossible for them to perform their duties in an office environment.
The Essential Functions Requirement
Employers who resist agreeing to remote work as a reasonable accommodation often argue that because physical presence at work is an essential function of a job, an employee unable to work in the office is not a qualified individual under the ADA and thus is not entitled to an accommodation. As the court in Shannon v. NYC Transit Authority[5] pointed out, a reasonable accommodation “can never involve the elimination of an essential function of a job.” As such, an accommodation that entails not performing an essential function is unreasonable as a matter of law.[6] Where disabled employees assert that they can perform all of their position’s essential functions while working remotely, however, courts must then determine what the essential functions of an employee’s job actually are. This assessment is not always an easy one.
Significantly, the term “essential functions of the job” is not defined in the ADA. However, the ADA regulations promulgated by the Equal Employment Opportunity Commission do address this question. According to the regulations, essential functions means “the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential function’ does not include the marginal functions of the position.”[7] The regulations then provide several reasons why a job function might be deemed essential and go on to provide examples of evidence that can show whether a particular function is essential or not.
The regulations’ examples can provide significant guidance to courts grappling with this issue. They include the employer’s judgment about what functions are essential; the feasibility of performing them remotely; written job descriptions; the amount of time required to perform the function; the work experience of past incumbents in the job; and the consequences of not requiring the incumbent to perform the function.[8]
Courts have followed this same approach, observing that “there are a number of relevant factors that may influence a court’s ultimate conclusion as to a position’s essential functions.”[9] In assessing the factors set forth by the EEOC regulations and case law,[10] courts often consider whether “job restructuring” and “part-time work or modified work schedules”[11] represent reasonable accommodations that still allow an employee to perform the essential functions of a job.[12]
Remote Work as an Accommodation for Employees With Disabilities
Many employees with disabilities find it difficult or impossible to work in an office or other workplace environment yet can perform their jobs capably while working from home. Such individuals may, for example, suffer from immune system disorders or be physically unable to manage the commute from home to workplace. Although a significant number of employers readily agree to reasonable accommodations involving remote work for such workers, others do not. Particularly in the last year, some employers have promulgated “return to workplace” policies requiring most or all employees to be physically present at work for at least one or two days per week. These directives give rise to many of the disputes and sometimes litigation involving remote work as an accommodation.
The numerous Court of Appeals and district court decisions in the Second Circuit on this issue are, by and large, not sympathetic to employers’ argument that simply declaring a job function to be essential is sufficient to establish that it is. The court in McMillan v. City of New York[13] specifically ruled that “[p]hysical presence . . . is not, as a matter of law, an essential function of all employment.”[14] Rather, courts must conduct a “fact-specific inquiry”[15] into “both the employer’s description of a job and how the job is actually performed in practice.”[16]
Connors v. Certified Mktg. Services[17] and Schuler v. Dow Chem. Co.[18] present analyses of this issue leading to very different outcomes. In Connors, the plaintiff was an accounting manager who suffered a knee injury and became unable to travel to the office as a result. Her primary duties were financial reporting, working with the company’s CPA, taking care of tax payments and supervising the contractor payroll and accounts receivable function. After Carolyn Connors asked for a reasonable accommodation that involved working remotely, the company took the position that her duties were all essential functions of the job and required her daily, full-time presence in the office. When she responded that she could only work from home, she was terminated.
After the ensuing lawsuit was commenced, Connors observed that the reports she was responsible for preparing were “available electronically”[19] and therefore could be easily prepared at home, and that her supervisory duties involved mainly checking the accuracy of two managers’ accounting work. Looking at all the facts, the court concluded that the accommodation sought by the plaintiff allowed her to perform the essential functions of her job and that remote work was a viable, reasonable accommodation. In doing so, the court pointed out that “working from home might qualify as a reasonable accommodation in that it is a ‘modification of adjustment to the work environment’”[20] and declined to accept the defendant’s argument that merely designating duties as official functions made them so.
In Schuler, although the plaintiff – who suffered from multiple sclerosis – sought a “defined leave of absence” as opposed to working remotely, the court conducted the same analysis regarding essential functions of the job as did the Connors court. Kim Schuler’s duties as an administrative specialist, unlike the plaintiff in Connors, clearly could only be performed if she were physically present in the workplace. They included locating records in the workplace, distributing the mail, bringing in food for luncheons and monitoring the stock of supplies. The court thus determined that the “vast majority of Schuler’s job duties . . . required her to be present at the [work] site” and as a result the plaintiff’s “proposed accommodation would eliminate the essential functions of the job.”[21]
How Courts Assess Essential Functions Arguments
The feasibility of performing essential functions remotely was addressed by the court in Mosby-Meachem v. Memphis Light, Gas & Water Division.[22] In that case, an in-house attorney who was placed on bed rest due to pregnancy complications sought a temporary remote work accommodation. The plaintiff presented evidence of prior successful remote work on her part as well as testimony from colleagues that confirmed her ability to handle her duties competently while working from home. Her employer, on the other hand, struggled to show how her physical presence at the office was actually necessary to capably carry out her responsibilities. Again, an employer’s insistence that an employee’s presence at the workplace was an essential function of her job was, by itself, not sufficient to justify denying her a reasonable accommodation.
Hernandez v. City of Hartford[23] addresses several key issues that repeatedly arise in ADA reasonable accommodation cases where a disabled employee seeks remote work as an accommodation. The first is an argument sometimes made by employers that physical interaction with co-workers is itself an essential function of a job. The Hernandez court rejected this notion, holding that the fact that some of the plaintiff’s duties involved interacting with other employees did not establish that physical presence in the office was an essential function precluding a work-at-home accommodation.
The court in Hernandez also discussed the related question of when an apparently important duty is nonetheless not an essential function. The plaintiff was an administrative assistant at a municipal government agency who had pregnancy complications, including premature labor. Her reasonable accommodation request to be allowed to work remotely for a limited period of time was not granted. The defendant argued to the court that face-to-face communication with other employees was an essential function of her job, along with handling emergencies and answering the telephone. Although interaction with co-workers was involved in carrying out her responsibilities, the plaintiff contended that it was not an essential function, and the court agreed. The court found that having certain “daily duties does not establish that they were ‘essential functions’ ” and that while there were “daily tasks with which plaintiff dealt, they were not necessarily ‘essential.’ ”[24]
Many court decisions dealing with the essential functions issue, particularly in cases where plausible arguments are advanced by both parties, required detailed assessments of the employee’s job duties and how they fit into the employer’s business operations. There are perhaps few better examples than Sivio v. Vill. Care Max,[25] where the employee was a care manager whose responsibilities included making home visits to clients. Enza Sivio suffered from an allergy to pet hair and sought a reasonable accommodation of not being required to undertake some home visits. The employer argued that the accommodation she requested eliminated an essential function of the care manager job.
In its analysis, the court observed that Sivio had in fact sought a more limited accommodation, i.e., to be excused from conducting home visits to any clients with pets. The court then denied the employer’s summary judgment motion, reasoning that “a reasonable jury could conclude that conducting home visits for members with pets was not an essential function of Sivio’s role as a care manager.”[26] (Had the employer introduced evidence showing that most of Sivio’s clients were pet owners, however, the result might well have been different.)
Of course, courts willing to closely examine the facts of a case involving a dispute about essential functions can easily reach the opposite conclusion, as did the 6th Circuit in EEOC v. Ford Motor Company.[27] In Ford, the plaintiff was a steel buyer who sought remote work as an accommodation. As in many other cases, the employer argued that presence in the workplace was an essential function of his job, contending that face-to-face interactions with team members was critical. The decisive factor, however, was that the employer was able to demonstrate that prior attempts at telework with those in the plaintiff’s role had been unsuccessful. The court held that while the plaintiff’s functions could be carried out remotely, they could not be performed effectively other than by physical presence in the workplace, and ruled for the employer.
Conclusion
In today’s post-pandemic world, courts clearly consider remote work as a potential reasonable accommodation. Nonetheless, these cases are increasingly fact-specific and, as demonstrated above, usually depend on whether the employees can show they can effectively perform the core elements of their jobs while working remotely. Cases where a court effectively takes an employer at their word that it is essential for employees to be physically available to perform their duties are much less common than before 2020. There is little doubt that the pandemic and the massive disruptions that it caused showed that many jobs previously considered unsuitable for remote work could in fact be performed capably remotely.
In sum, employer arguments based on outdated assumptions about workplace operations or the premise that a court will automatically take an employer’s word regarding workplace circumstances over that of an employee are encountering less sympathetic treatment by many courts. The decline in judicial leniency for employers’ generalized arguments about what constitutes an essential function of a job reflects the ever-evolving nature of the workplace and arguably is more consistent with the spirit and letter of the Americans With Disabilities Act than had previously been the case.
Geoffrey A. Mort is of counsel to Kraus & Zuchlewski in New York City, where he represents individuals in employment law matters. He is a member of the NYSBA Labor and Employment Law Section Executive Committee and co-chairs the American Bar Association Employment Rights & Responsibilities Committee’s Subcommittee on Employment-at-Will. He also is a fellow in the College of Labor and Employment Lawyers.
Endnotes:
[1] McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009).
[2] 42 U.S.C. § 12112(a).
[3] Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995).
[4] ADA regulations state that a reasonable accommodation may include “modifications or adjustments to the work environment, or to the manner of circumstances under which the position held . . . is customarily performed.” 29 C.F.R. § 1630.2(o)(ii).
[5] 332 F.3d 95, 100 (2d Cir. 2003).
[6] See Lewis v. NYPD, 908 F. Supp. 2d 313, 328 (E.D.N.Y. 2012).
[7] 29 C.F.R. § 1630.2(n).
[8] Id.
[9] McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013).
[10] See Stone v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997).
[11] Ray v. Weit, 708 Fed. Appx. 719, *4 (2d Cir. 2017), citing 42 U.S.C. § 12111(9)(B) (emphasis added).
[12] See, e.g., Rodal v. Anasthesia Group of Onondaga P.C., 369 F.3d 113, 120 (2d Cir. 2004) (a modified work schedule may constitute a reasonable accommodation in some circumstances).
[13] McMillan v. City of New York, supra n. 9.
[14] McMillan, supra n. 9, at *12.
[15] Hampson v. State Farm Mut. Auto Ins. Co., 2015 U.S. Dist. LEXIS 192061, *23 (N.D.N.Y. 2015).
[16] Id.
[17] Connors v. Certified Mktg. Services, 2005 U.S. Dist. LEXIS 16777 (N.D.N.Y 2005).
[18] Schuler v. Dow Chem. Co, 2018 U.S. Dist LEXIS 1018 (W.D.N.Y. 2018).
[19] Connors, supra n. 17, at *16.
[20] Connors, supra n. 17, at 19.
[21] Schuler, supra n. 18, at 21–22.
[22] 883 F.3d 595 (6th Cir. 2018).
[23] 959 F. Supp. 125, 130–32 (D. Conn. 1997).
[24] Id.
[25] 436 F. Supp. 3d 778 (S.D.N.Y. 2020).
[26] Id. at 793.
[27] 782 F.3d 753 (6th Cir. 2015).
