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...

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