Following the COVID-19 pandemic, one of the most common scenarios we have faced involves employee resistance to return-to-office mandates. Employees who had been working a remote or hybrid schedule are informed that they need to return to in-person work. In response, they provide information from a healthcare provider requesting a continuation of remote work as an accommodation for a physical or mental health condition under the Americans with Disabilities Act. Last week, the Fifth Circuit Court of Appeals squarely sided with employers' ability to end remote work arrangements.

In Hayes v. GStek Inc., an Army contractor mandated in-person work, ending a fully remote arrangement in place during the pandemic. The plaintiff requested continuation of remote work, providing documentation of a range of mental health conditions. The employer concluded that the job could effectively be performed on a remote basis, but only approved a hybrid schedule, citing business interests as the reason for rejecting fully remote work. After a few months, the plaintiff indicated that he could not work in-person, and the employer subsequently terminated his employment.

The Fifth Circuit affirmed a district court decision dismissing the plaintiff’s ADA lawsuit. The court concluded that the plaintiff was not a qualified disabled person under the ADA due to his inability to work in person. The Fifth Circuit said that in-person work was an essential function of the job due to the Army’s stated preference for its contractors. The court went beyond this conclusion, noting that in-person work is an essential function for most jobs. The fact that many employers allowed remote work during the COVID-19 pandemic does not mean that working in the office is not essential. For many jobs, effective supervision and communication require that the employee be in the office. The Fifth Circuit also noted that the hybrid arrangement provided by the employer was an effective accommodation, even if it was not the one preferred by the employee.

This decision is considerably more employer-friendly than other federal courts that have analyzed remote work arrangements under the ADA. Employers mandating in-person work should include this in job descriptions, and clearly explain the reasons for this requirement. Any request for an ADA accommodation should be fully analyzed, and all conclusions reached should be based on those business needs. While not binding law across the U.S., the Fifth Circuit’s decision in this case may indicate a pendulum swing back toward recognizing the importance of in-person work as an essential function for most jobs.

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