Q2 ’26: Home Sweet (Work From) Home

The Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) issued a FAQ-style joint technical assistance document in February addressing telework accommodations for federal employees with disabilities under the Rehabilitation Act and the Americans with Disabilities Act (ADA).

The guidance is intended to assist agencies in identifying:

• When they must grant or continue telework accommodations;
• When they may rescind, modify, or deny telework accommodations; and
• How they can more effectively structure processes for telework accommodations.

The guidance responds to questions from federal sector employers — the same questions many private sector employers are asking. Although directed to federal agency employers, the guidance may provide helpful guideposts for private sector employers.

The EEOC uses “telework” to refer to work performed at a location other than the employer-controlled worksite full-time, on a regularly scheduled basis, or temporarily to address a particular situation. Apparently, I sometimes “telework” at Arby’s. No, I don’t, please don’t tell my boss.

Anyways, the guidance explains that telework can be a reasonable accommodation if it falls under one of three categories:

1. Accommodations that enable applicants with disabilities to participate in the application process;
2. Accommodations that enable employees with disabilities to perform the essential functions of their positions; [or]
3. Accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

Importantly, the guidance makes clear that if the telework is primarily for the employee’s personal benefit, then it would not be a required accommodation under the law. In other words, since eating roast beef sandwiches is for my personal benefit and not related to a disability, it seems my accommodation is not required. For example, and more seriously, accommodations that only mitigate symptoms without also enabling the employee to perform essential functions are not legally required.

Regarding ongoing telework arrangements, the guidance states that agencies can revisit previously granted accommodations and “assess whether there continues to be a need for reasonable accommodation based on individualized circumstances [including] whether alternative accommodations might meet those needs.” Agencies should “situationally reevaluate” accommodations “in response to material changes, such as a change in the employee’s condition, a change in job requirements, a change in operational needs, a change in the law, etc.”

The guidance explains that where an employer has exceeded its legal obligations regarding telework, the employer is not obligated to continue the telework arrangement.

As for requesting updated medical documentation to assist the employer in reevaluating previously granted telework, the guidance states that, in some situations, existing medical documentation from the initial grant of the accommodation should be sufficient, and all that needs to be done is to ask the employee if the information is still accurate. If the existing documentation is insufficient or no longer accurate, however, the agency is permitted to request updated or additional documentation to support.

The guidance also provides agencies instructions around sticky issues, such as addressing evidence that contradicts an employee’s need for a telework accommodation, how to respond if an employee asserts a new alternative in-office accommodation is or will be ineffective (this is a common issue), an agency’s options if an employee refuses to return to work in the office following the rescission or modification of a telework accommodation, and telework requests related to anxiety, flareups, and commuting issues.

Although the guidance is directed at federal agencies, the EEOC may take similar positions on these issues in the private sector. All employers may want to consider this guidance when determining whether telework accommodations may be granted, modified, or denied, and how to structure their process for telework accommodations.

But for many of you, much of the information in the FAQs is not new to private employers who have been carefully considering requests for remote work.

Employers should also consider applicable state and local laws, including disability accommodation laws that are broader than the ADA and relevant state court decisions.

In celebration of the EEOC publishing an FAQ on remote work, let’s chat about what to do when you have an employee working remotely who is not meeting performance expectations. In this case, Miami-Dade County’s animal services department hired an employee as an outreach specialist responsible for booking and hosting pet adoption events (FUN). The position required successful completion of a 12-month probationary period before the employee could attain civil service status. Probationary employees are informally evaluated by their supervisors rather than through formal performance reviews.

Several months into probation, the employee developed serious health issues, including migraines, dizzy spells, lightheadedness, etc., and was subsequently diagnosed with a brain tumor, thyroid masses, and an autoimmune disease. After she provided medical documentation, the employer allowed her to work from home on some days and to work flexible hours, provided she still worked eight hours each day.

Some of the leadership team were unhappy about the accommodation. A department leader questioned how long the work-from-home arrangement would continue and whether it could end sooner.

Further, after the employee began working remotely, her relationship with coworkers deteriorated. She said colleagues were less responsive and less willing to help with events. She also claimed she overheard a supervisor suggest she was “faking it” and there was no way she had a brain tumor.

At the same time, supervisors documented a series of performance concerns during the probationary period. The record included recurring complaints about communication and event planning, as well as a finance division grievance about receipts from an event not being submitted on time. During a performance meeting, the employee did not dispute that the receipts were overdue, though she denied responsibility for submitting them. Management also cited inefficiency while working from home, including a specific day on which the employee allegedly produced little work output while reporting four hours of time.

After the meeting, performance did not improve, and 11 months into the probationary period, the supervisor notified human resources that she intended to conclude that the employee had failed probation. Human resources prepared a failure-of-probation letter, which a department leader signed. At a subsequent meeting, an HR leader explained to the employee that the decision was not about her health issues, but about performance and her inability to give “100%” right now.

The employer contended that the employee resigned. The employee contended she was terminated. The court assumed she was terminated.

The employee sued under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Florida Civil Rights Act, alleging her employment ended because of her disability.

The Eleventh Circuit affirmed summary judgment for the employer.

First, the court held that the employee did not present direct evidence of disability discrimination. The statements made during the probation-failure meeting were ambiguous and open to interpretation, not the kind of blunt remark that proves discriminatory intent without inference.

Second, the court focused on the employer’s stated reasons—complaints about lack of communication and the employee’s admitted failure to submit receipts on time—and concluded the employee had not shown those reasons were false. The court also reiterated it does not decide whether an employer’s reasons were prudent or fair. The only question is whether discrimination was the real reason.

Ultimately, the evidence showed workplace frustration with remote work and a belief that performance suffered, not intentional disability discrimination.

Here are the most important takeaways when managing a remote workforce.

• If remote work is the accommodation, keep expectations concrete. Spell out deliverables, responsiveness requirements, and coverage expectations. Consider a remote work agreement for all employees who telework, outlining such expectations.
• Document performance issues while the accommodation is in place. This case turned on the employee’s inability to show that the employer’s reasons were false. Objective-specific documentation is critical.
• Train supervisors to stay out of the medical lane. Comments like “she’s faking it” are a great way to sink a case and show the court you’re not a good human being. Retaliation claims can come from subtle frustration from managers or peers over needed accommodations. Supervisors should focus on observable performance and expectations, not medical speculation.

Remember the iconic Seinfeld episode with the strict soup chef, who bans customers from his New York stand for not following rigid ordering rules, specifically refusing service with “No soup for you!”? This story is exactly like that, except in this case, the employer came out ahead when telling their former employee, “No FMLA for you!”

The employee worked as a human resources specialist and had previously been approved for intermittent FMLA leave for migraines. Later that same year, she obtained approval for continuous FMLA leave to care for her son from August 31 through November 3.

When the leave expired, the employer told her multiple times to return to work on November 15. She did not return.

Instead, she called the company’s attendance line the morning of November 15, said she assumed she had already been terminated, thanked the company for the opportunity, and indicated she would return company property. The employer terminated her that same day for “Leave Exhaust/Failure to Return to Work.”

The next day, she tried to change the story and attempt to retroactively report intermittent FMLA for absences on November 11, 12, and 15. The employer said “No FMLA for you” and upheld the separation.

The employee then alleged FMLA interference and retaliation, but both claims failed.

The interference claim fell apart because the employee attempted to report intermittent leave after she had already been terminated. At that point, she was no longer entitled to FMLA benefits.

Even setting that aside, the claim still had a notice problem. FMLA regulations require employees to provide notice of leave “as soon as practicable” and generally consistent with the employer’s normal reporting rules. Here, the employer required employees to report intermittent FMLA absences the same day they occurred.

Ultimately, the evidence showed the termination was based on her failure to return to work when instructed, not on her earlier use of FMLA leave.

As the court observed, the record told a simple story—the employer terminated the employee for an unexcused absence.

What have we learned here? Remember, employers, FMLA notice rules matter. Employees generally must follow the employer’s usual reporting procedures unless circumstances prevent them. Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call-off should include. Further, outline if a text message or voicemail is acceptable or if they must speak with someone directly. This defined detail is an excellent tool to combat FMLA misuse. I am not a fan of wishy-washy language such as “as soon as practicable.”

Additionally, return-to-work instructions should be clear and documented. In this case, the employer repeatedly told the employee exactly when she needed to return.

Termination for failure to return after leave expires is not always retaliation. At least in this case, where the record shows the decision was based on the employee’s absence itself. But don’t forget the Americans with Disabilities Act (ADA). Even when FMLA leave is exhausted, a medical condition may still trigger the employer’s duty to consider reasonable accommodation, which can sometimes include additional leave.