Fifth Circuit Backs Employers on In-Person Attendance as an Essential Job Function
Employers still fielding permanent work-from-home requests have new support from the Fifth Circuit for enforcing in-person attendance, including against requests framed as disability accommodations.
In Hayes v. GStek, Inc., an IT systems administrator for an Army contractor had worked remotely during the pandemic. When the Army ended remote work for contractor staff in February 2022, the plaintiff, who has autism, major depressive disorder and social anxiety disorder, asked to continue working from home as an accommodation. GStek initially thought he could perform remotely, but the Army determined that full-time remote work was against its interests. GStek offered a hybrid schedule of two to three days at home. He worked it for about two months, then said again that he needed to work from home. He was terminated days later, and sued for discrimination, failure to accommodate and retaliation.
Expert comment from Daniel R. Levine, Esquire:
A recent Fifth Circuit decision provides welcome guidance for employers dealing with requests for permanent remote work as an ADA accommodation—particularly where the employee previously worked remotely during the COVID-19 pandemic.
In Hayes v. GStek, Inc., the court upheld the termination of an employee who sought to work from home full-time because of disabling conditions. The employer had permitted a hybrid schedule, but full-time remote work conflicted with the requirements of its Army customer and the employer’s legitimate business interests. The Fifth Circuit reiterated that courts generally defer to an employer’s judgment concerning a position’s essential functions and recognized that regular, in-person attendance remains an essential function of many jobs. Just as importantly, the court rejected the notion that temporary remote-work arrangements during the pandemic permanently changed a job’s essential functions.
The practical takeaway is important: an employee’s ability to work remotely during COVID does not, by itself, establish that permanent remote work is a reasonable accommodation under the ADA. Employers may still require in-person attendance where there are legitimate business reasons for doing so, and they are not required to provide an employee’s preferred accommodation if another reasonable accommodation is available.
That said, employers should not treat the decision as a license to automatically deny remote-work requests. Each request still requires an individualized assessment through the interactive process. Job descriptions and attendance requirements should accurately reflect the employer’s actual expectations, those requirements should be applied consistently, and any denial of remote work should be supported by legitimate operational considerations rather than simply a preference for having employees in the office.
The district court dismissed the claims, and the Fifth Circuit affirmed. The plaintiff had to show he could perform the essential functions of the job, with or without accommodation. Courts defer to the employer's judgment on which functions are essential, not the employee's, and here in-person attendance qualified because the Army had ruled out full-time remote work and the contractor had a legitimate interest in honoring that condition.
The broader language is what makes the decision useful. The court noted the general judicial consensus that regular work-site attendance is an essential function of most jobs and that full-time telework is rarely a reasonable accommodation. Pandemic-era arrangements did not change that: a temporary accommodation does not permanently redefine a job's essential functions, and remote work can still constitute undue hardship. Supervisory capacity also counts, and the court pointed to repeated communication failures between the plaintiff and his supervisor. Offering two to three remote days satisfied GStek's obligation, because the alternative would have altered the job itself.
Two cautions before treating this as a green light. Attendance requirements should be documented in job postings and job descriptions and enforced consistently across comparable roles. And requests still require case-by-case evaluation. A denial based only on a preference for in-person work will not hold. It needs a real business interest behind it and an honest assessment of the actual burden, which is worth running past employment counsel before you issue it.
For a detailed look at the decision and its implications for employers evaluating remote-work accommodation requests, see “Recent Federal Appeals Court Decision Provides Guidance to Employers on Remote Work as a Disability Accommodation,” JD Supra: https://www.jdsupra.com/legalnews/recent-federal-appeals-court-decision-2898758/