Remote Work Privacy Insights Edition 11: When Return-to-Office Becomes a Disability Discrimination Case: The ADA Collision Every HR Leader Needs to Understand

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The Perfect Storm Has Arrived.

Picture this: Stephanie, a senior software developer in your Denver office, submits an ADA accommodation request for permanent remote work due to her multiple sclerosis diagnosis. She's been working from home successfully for four years. Your HR team approves her request under Colorado law, which, unlike federal law, protects disabilities that merely "limit" rather than "substantially limit" major life activities. Three weeks later, your company announces a mandatory return-to-office policy. Your legal team insists all remote work arrangements must be re-evaluated under the stricter federal ADA standard. Stephanie's accommodation is now in limbo—and she's one of 47 employees across 12 states with pending requests.

I want to start with a number that should reframe how you're thinking about your return-to-office policy.

Nearly 6,800 disability accommodation cases were filed in federal court in 2025 alone — a year-over-year increase of approximately 42%. Disability claims now appear in over 40% of all EEOC merit lawsuits. In February 2026, the EEOC and Office of Personnel Management jointly issued new guidance specifically addressing telework accommodations under the ADA, prompted by the collision between President Trump's January 2025 return-to-office executive order and the accommodation rights of disabled federal workers.

None of this is theoretical risk anymore. It's the operational reality facing every employer — public or private — that has deployed a return-to-office mandate without building a rigorous, individualized accommodation process around it.

What makes this moment genuinely complicated isn't the existence of accommodation obligations. HR professionals know the ADA. What's making it legally treacherous is the intersection of three forces arriving simultaneously: aggressive RTO mandates that were designed as blanket policies; a dramatic surge in disability and Long COVID accommodation requests; and a multi-state patchwork of disability law that makes the same employee request require completely different responses depending on which state they're sitting in when they open their laptop.

In this edition, I want to work through that intersection honestly — through concrete scenarios, through Helen Nissenbaum's contextual integrity framework, and through the primary law that governs each piece — so that you can build an accommodation process that holds up, rather than one that becomes the centerpiece of the next disability discrimination class action.

The January 20, 2025, executive order mandating that federal employees return to in-person work "on a full-time basis… consistent with applicable law" set off a chain reaction. The crucial phrase — "consistent with applicable law" — carried an implicit acknowledgment that the accommodation obligations of the Rehabilitation Act of 1973 and the ADA couldn't simply be swept aside by a workforce location directive. It's the same tension playing out across every major private-sector RTO announcement: Amazon, JPMorgan, Starbucks, and hundreds of organizations that followed their lead have all discovered, in some form, that a blanket "everyone back by this date" policy creates individual liability for every employee who has a disability and a reasonable argument that remote work enables them to perform their essential job functions.

The Long COVID factor has compounded this significantly. HHS guidance is explicit: Long COVID can constitute a disability under the ADA when it "substantially limits one or more major life activities." The symptoms are varied — post-exertional malaise, cognitive dysfunction, cardiorespiratory issues, neurological effects — and they don't fit neatly into traditional accommodation frameworks because they fluctuate, they're often invisible, and the medical community's understanding of them continues to evolve. An employee who appears fully functional on a Tuesday may experience a crash by Thursday that makes in-person work genuinely impossible. Accommodating Long COVID requires a level of flexibility and ongoing dialogue that rigid RTO timelines were not designed to produce.

And then there's the evidentiary problem that employers created for themselves during the pandemic without realizing it. Between 2020 and 2022, the vast majority of organizations discovered — often to their own surprise — that their workforce could perform their essential job functions remotely. Courts have now spent several years absorbing that discovery. As one federal district court found in August 2025, prior successful remote work during the pandemic can directly undermine an employer's claim of "undue hardship" and "essential function" when those arguments are deployed against an accommodation request later. The question a court will ask is not whether you've now decided that in-person presence matters. It's whether you can explain why it suddenly became essential after four years of successful remote work proved it wasn't.

Before getting into the contextual integrity analysis and the state-by-state complexity, I want to be precise about what the federal framework requires, because there are a lot of imprecise summaries of this circulating in HR circles right now.

The Americans with Disabilities Act requires employers with 15 or more employees to provide "reasonable accommodations" to qualified individuals with disabilities unless doing so would impose an "undue hardship." Telework — or remote work — can be a reasonable accommodation when it falls into one of three categories: it enables the person to participate in the application process, to perform the essential functions of their position, or to enjoy equal benefits and privileges of employment. The EEOC has recognized telework as a potential reasonable accommodation since at least 2003.

The joint EEOC/OPM guidance published February 12, 2026 — while directed at federal agencies navigating the RTO executive order — addresses several questions that private employers face identically. A few key points that practitioners should understand:

Telework requested primarily for the employee's personal benefit, without serving one of the three accommodation purposes above, is not a required accommodation. The ADA doesn't create a general right to remote work. Anxiety alone, if an employee can meet performance standards on-site, may not be a material barrier requiring telework. The EEOC is explicit that a difficult commute doesn't trigger a telework accommodation obligation.

But the EEOC is equally explicit that employers can't simply rescind or deny telework accommodations because they've decided in-person work is preferable. They must evaluate whether alternative in-office accommodations could be effective, engage genuinely in the interactive process, and demonstrate that telework specifically fails to meet a documented essential function requirement. A tersely worded denial email — which was precisely what damaged the employer in the August 2025 federal district court case — is not a good-faith interactive process.

The interactive process is the procedural heart of ADA accommodation compliance, and I'll emphasize this throughout: it's a dialogue, not a decision. The EEOC's guidance characterizes it as a cooperative obligation on both parties — employer and employee working together to analyze job functions, identify limitations, explore possible accommodations, and implement the most appropriate one while giving primary consideration to the employee's preference. Short-circuiting that process — whether through multi-level bureaucratic review that extracts excessive medical information, or through a form denial that cites "business preference" rather than documented essential functions — is where litigation begins.

Federal law establishes the floor. State law frequently raises it dramatically, and the gap between what the federal ADA requires and what California, Colorado, New York, or New Jersey requires can be significant enough to determine the outcome of a legal challenge.

California's Fair Employment and Housing Act (FEHA) applies to employers with five or more employees — one-third the federal threshold — and defines disability as a condition that merely "limits" rather than "substantially limits" a major life activity. That's not a semantic distinction. It means conditions that would not qualify for ADA protection can trigger FEHA accommodation obligations, and the universe of employees entitled to engage the interactive process is materially larger. California FEHA also requires employers to initiate the interactive process as soon as they become aware that an employee may have a disability affecting their work, not just when the employee formally requests accommodation.

New York law covers medically diagnosable conditions even without demonstrable functional impairment in certain contexts, and New York courts have interpreted the accommodation obligation expansively. New Jersey takes this further: under the New Jersey Law Against Discrimination, a failure to simply respond to an accommodation request can establish a discrimination claim — no adverse action required. If your HR team's response to an accommodation request is silence while the RTO mandate is enforced, you may have committed a New Jersey LAD violation without making any active decision at all.

Colorado covers employers without regard to minimum employee thresholds for some disability protections — meaning small organizations that would be exempt from federal ADA may have full accommodation obligations under state law for Colorado-based employees.

The practical implication is one that most multi-state employers haven't yet built into their processes: remote employees are generally subject to the laws of the state where they physically perform their work, not the state where the company is headquartered. A company with offices in Texas and remote employees in California, New York, and New Jersey is operating under four different disability frameworks simultaneously — and none of those frameworks accept "we follow federal ADA standards" as a compliant response to the state-specific obligations.

Beyond the accommodation decision itself lies a privacy question that the ADA addresses directly but that most organizations manage poorly: what happens to the medical information an employee discloses during the accommodation process?

This is where Helen Nissenbaum's contextual integrity framework gives us the sharpest analytical tool for understanding why many accommodation processes — even ones that produce the right outcome — produce it through a process that violates the employee's privacy in ways that create independent legal liability.

Let me apply all five contextual integrity principles to a concrete scenario.

The Scenario: Marcus, a financial analyst at a Texas-headquartered firm, works remotely from California. Following his company's RTO mandate, Marcus submits an ADA accommodation request for continued remote work. He has chronic fatigue syndrome aggravated by Long COVID. The firm's accommodation process routes his request through a dedicated "accommodation consultant," who conducts an extensive interview. The consultant asks about Marcus's daily symptom patterns, medication schedule, how his condition affects his personal relationships outside work, whether he's explored moving closer to the office, and what his "typical week" looks like on days when symptoms are active.

This information is then shared with Marcus's direct supervisor, two HR managers, and a three-person executive review panel. The process takes eleven weeks. No written explanation of the decision is provided.

Principle 1 — Context: The context here is an employment relationship that has triggered a specific, legally-regulated process: the ADA interactive process. That process exists within a narrow contextual purpose — determining what accommodation enables an employee with a disability to perform essential job functions. The medical information Marcus discloses belongs to the context of his healthcare relationship with his physicians, not to the employment context, except to the extent directly relevant to job function limitations.

Principle 2 — Actors: The appropriate actors in an ADA accommodation process are the employee, the HR professional managing the process, and potentially a medical review professional with appropriate confidentiality obligations. The ADA explicitly limits disclosure of employee medical information to those with a "need to know." A direct supervisor, two HR managers, and a three-person executive panel don't constitute a "need to know" standard — they constitute information dissemination that the ADA prohibits. The law requires that medical information "be collected and maintained on separate forms and in separate medical files and be treated as confidential records."

Principle 3 — Attributes: Chronic fatigue syndrome diagnosis, symptom severity, and functional limitations in performing job tasks are attributes that belong narrowly in the accommodation context. Questions about how the condition affects Marcus's personal relationships, his housing choices, and his lifestyle are attributes that belong in his personal life context, not the employment context. They are irrelevant to the legal question of whether remote work enables him to perform his essential job functions, and their collection constitutes a medical inquiry that exceeds what the ADA permits. The EEOC is explicit that once an accommodation request is submitted, any medical inquiry must be "job-related and consistent with business necessity."

Principle 4 — Transmission Principles: Marcus's medical information was transmitted to the accommodation process because he disclosed it to facilitate a legally mandated interactive process. The transmission principle — the norm governing how that information should flow — is confidentiality, limited to the minimum necessary for the accommodation determination. When that information flows from the HR process to Marcus's direct supervisor, it crosses into a transmission that the ADA does not permit, and that creates power dynamics in Marcus's future employment relationship that he cannot control or remedy. His supervisor now knows his medical situation, his symptom patterns, and his limitations in ways that can influence every performance review, project assignment, and promotion decision going forward — none of which Marcus consented to when he submitted an accommodation request.

Principle 5 — Information Norms: The information norm of the ADA interactive process is confidentiality, good faith, job-relevance, and timeliness. The norms of this particular process — six recipients, an eleven-week timeline, questions about personal relationships, no written explanation — violate every one of those expectations. Marcus entered the process understanding that the law gave him a right to accommodation through a confidential, focused dialogue about his job functions. What he experienced was a medical interrogation shared with his management chain.

This contextual integrity violation isn't only a privacy concern. It's a legal one. The ADA prohibits retaliation against employees who request accommodations. When an employee's detailed medical information reaches their direct supervisor through an accommodation process, the legal risk of retaliation claims — whether or not retaliation actually occurs — becomes structurally embedded in the employment relationship. If Marcus receives a negative performance review three months after his accommodation request, the contextual integrity framework predicts exactly why he and his attorney will believe it's connected, and the medical information shared with his supervisor creates the evidentiary foundation for that belief.

A healthcare technology company announces a full return to office for all employees, effective 90 days from announcement. The justification in the announcement: "In-person presence is essential to our collaborative culture and innovation mission." Within two weeks, the company received 43 accommodation requests from employees with various disabilities, including MS, anxiety disorders, and Long COVID, all requesting continued remote work.

The HR team's initial response is to apply a standard: any accommodation request seeking full-time remote work is denied, because "in-person presence has been designated as essential." The denial letters are brief — three sentences citing the business preference for in-person work and inviting employees to "discuss alternative accommodations."

The problem the HR team doesn't see: during the pandemic, these same employees worked remotely for approximately 30 months. Fourteen of them received formal or informal positive performance reviews during that period. The company's own documentation shows that its products were delivered, its clients were served, and its operations functioned during the period when 100% of the workforce was remote.

When two of the denied employees file EEOC charges and a third files suit in California — where they work — the discovery process will surface exactly those facts. The federal district court precedent from August 2025 establishes that prior successful remote work can directly undermine the "essential function" defense. The company's three-sentence denial letters, citing preference rather than documented function, will be Exhibit A in the argument that no genuine interactive process occurred.

What compliance requires: An essential functions analysis that is grounded in actual job duties, not aspirational descriptions of collaboration culture. Under the ADA, the written job description is evidence of essential functions — but actual work history is also evidence, and courts weigh them together. For every position where in-person presence is being claimed as essential, HR needs to be able to answer: what specific tasks require physical presence, and why couldn't those tasks be performed remotely when we successfully performed them remotely for 30 months? If you can't answer that question in writing with operational specificity, you don't yet have an essential functions defense — you have a preference.

The interactive process also needs to be genuine. That means proposing specific alternatives to full-time remote work when accommodation of full-time remote work isn't possible — hybrid arrangements, modified schedules, restructured duties — and documenting the consideration of each, not sending a form denial letter.

A national financial services firm processes accommodation requests through an "accommodation consultant" role embedded in HR. When an employee with an anxiety disorder and PTSD submits a request following the RTO announcement, the consultant conducts an intake call that lasts 90 minutes. The consultant asks about the employee's therapy schedule, her sleep patterns, the specific triggers that make in-person work difficult, and how her condition affects her relationships with her colleagues. A summary of this intake — described as a "clinical profile" — is shared with the employee's manager, the manager's manager, and the general counsel's office.

Three months after her accommodation is approved for two days of remote work per week, the employee is placed on a performance improvement plan. The PIP cites "difficulty collaborating with colleagues" — a characteristic that was explicitly documented in the "clinical profile" shared with her manager.

This scenario illustrates the most dangerous contextual integrity failure in accommodation processes: the downstream contamination of employment decisions by medical information that shouldn't have reached decision-makers. The ADA requires that medical information be kept in separate, confidential files. Supervisors and managers may only be told about "necessary restrictions on the work or duties of the employee and necessary accommodations" — not about diagnoses, symptom profiles, or clinical characterizations of the employee's condition.

When the employee's attorney requests discovery, the "clinical profile" document and the PIP will be reviewed together. The causal connection the attorney will allege between the medical disclosure and the subsequent performance criticism — "difficulty collaborating" as a symptom characteristic transformed into a performance deficiency — will not require proving intent. The ADA's retaliation and interference provisions cover adverse employment actions that follow from an employee exercising accommodation rights, regardless of whether the employer consciously connected the two.

What compliance requires: Medical information collected during the accommodation process must be stored separately from the personnel file. The only information that should reach a supervisor is: (1) what accommodation is being implemented; and (2) if relevant to work assignment, any necessary functional restrictions in plain language that don't reveal the diagnosis. "Sarah will work remotely on Mondays and Wednesdays as part of an approved accommodation" is appropriate. "Sarah experiences PTSD and anxiety-related difficulties that make in-person collaboration stressful" is a HIPAA-adjacent confidentiality violation and an ADA violation regardless of HIPAA's technical applicability. Train your accommodation consultants on what they can and cannot share. Audit what actually reaches management.

A Denver-headquartered company with remote employees in 22 states announces a return-to-office policy and establishes a uniform accommodation process based on federal ADA standards: the 15-employee threshold, the "substantially limits" disability definition, and a 30-day response window. HR is confident this meets legal requirements.

It meets federal requirements. It meets Colorado requirements for some purposes. It does not meet California requirements — where several employees work — which apply to employers with five or more employees, use the lower "limits" disability standard under California Government Code § 12926, and require the employer to initiate the interactive process upon awareness that an employee may have a disability. It does not meet New Jersey LAD standards, under which the company's failure to acknowledge an accommodation request from a New Jersey employee within a reasonable time — while the RTO mandate proceeds — may itself constitute a discrimination claim without any adverse action. It does not account for the New York human rights framework, which extends protections to conditions that may not meet the ADA's definition.

Three months after the RTO policy takes effect, the company faces accommodation-related charges from employees in four states. Each charge is being evaluated under a different law with different standards. The uniform process the company built satisfies the least demanding jurisdiction and fails the rest.

What compliance requires: A jurisdiction mapping exercise that identifies, for every state where employees physically work, the applicable disability definition, the accommodation standard, the interactive process obligations, and the response timeline requirements. This is not a one-time exercise — it needs to be maintained as the workforce geography changes and as state laws evolve. The most protective standard available — which currently would be something close to California FEHA for most purposes — should be considered as the universal baseline, because the cost of maintaining differentiated processes by state is high, the risk of error is significant, and the legal exposure in the higher-protection states far exceeds the cost of applying their standards universally.

The organizations navigating this intersection successfully share a few characteristics that I want to make explicit.

They treat the essential functions analysis as a living document, not a legacy job description. Job descriptions were often written pre-pandemic, sometimes by HR generalists without deep knowledge of actual daily tasks. They frequently describe in-person presence as essential because that was assumed, not because anyone analyzed whether specific tasks genuinely required it. A compliant essential functions analysis in 2026 requires review against what actually happened during remote work, what tasks were demonstrated to function remotely, and which specific duties — if any — genuinely require physical co-location.

They confine medical information to the smallest necessary recipient group. The accommodation decision-maker — typically a trained HR professional — should be the only person reviewing medical documentation. The supervisor learns what accommodation is being implemented. The general counsel's office may learn that an accommodation is in process if litigation risk is relevant. Nobody else needs to know anything, and "nobody else needs to know" should be enforced as a policy, not a preference.

They document every step of the interactive process in writing. Not because every accommodation will lead to litigation, but because the documentation is what distinguishes a good-faith interactive process from a perfunctory one when litigation does occur. What was discussed? What alternatives were proposed? What was the medical basis for the determination? What was the timeline? Why was a particular option chosen or rejected? The August 2025 court ruling that found an employer's tersely worded rejection email "particularly damaging" is a reminder that courts evaluate process quality, not just outcomes.

They audit for inconsistency across similarly situated employees. One of the most dangerous liability patterns in accommodation cases is inconsistency — where one employee's accommodation request for remote work is denied because of "essential function" arguments, while another employee in an equivalent role works remotely without formal accommodation. The EEOC standard allows claims to proceed when employers permit other similarly situated employees to work from home. Audit your current remote arrangements for the inconsistencies that create discrimination exposure.

They invest in manager training before the policy takes effect, not after the first charge is filed. Under the ADA, employees don't need to use the words "ADA," "accommodation," or "disability" to trigger the interactive process. A statement to a manager like "I'm struggling with the commute because of my health condition" may be sufficient. Managers who don't recognize informal accommodation triggers, who make preliminary judgments about whether requests are legitimate, or who share medical information they've received with colleagues — all of these behaviors create employer liability. The Geisinger Health $450,000 settlement in February 2026 — for maintaining policies that denied accommodations, forced disabled employees returning from medical leave to compete for their own positions, and retaliated against employees for taking leave — is a reminder that even large, sophisticated healthcare employers get this wrong when manager training hasn't kept up with legal obligations.

I want to close with some data that I think should shift how HR leadership thinks about accommodation operations, because in most organizations, it's treated as a compliance function rather than a strategic risk function.

Disability claims now appear in over 40% of all EEOC merit lawsuits. The average settlement in disability discrimination cases runs around $200,000 at the federal level — substantially higher when state-law multipliers, attorneys' fees, and reputational costs are included. The 42% year-over-year increase in disability accommodation federal filings in 2025 is not a statistical anomaly; it's a trend line driven by the RTO wave, Long COVID prevalence, and growing employee awareness of accommodation rights.

At the same time, the Bureau of Labor Statistics reported that 22.7% of Americans with disabilities held jobs in 2024 — the highest share since tracking began in 2008. Remote and hybrid work has been instrumental in that milestone. Organizations that respond to RTO pressure by making accommodation processes punitive, extractive, or bureaucratically hostile are not just creating legal liability. They are making a choice about who gets to participate in their workforce — and they are making that choice in ways that courts, regulators, and increasingly sophisticated plaintiffs' attorneys will scrutinize.

The accommodation process that holds up legally isn't complicated. It's a genuine, documented dialogue about specific job functions, confined to the people who need to be involved, resolved in a reasonable time, with a written explanation of the outcome. What makes it hard isn't the legal standard — it's the organizational culture that treats accommodation requests as challenges to be minimized rather than as legal obligations to be honored.

The organizations that get this right in the next 12 months, as RTO pressure continues and accommodation request volumes stay elevated, will have built a process that works. The ones that don't will be working through it in discovery instead.

If this edition has surfaced questions about your specific accommodation process, your jurisdiction mapping for multi-state employees, or your essential functions analysis framework — reply directly. This is exactly the kind of conversation that should happen before the EEOC charge, not after.

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Disclaimer: Remote Work Privacy Insights is a newsletter that looks at privacy issues in the workplace using academic ideas. It's meant to educate and is not legal advice. For advice tailored to your company, talk to a qualified privacy or employment lawyer. The opinions shared are the author's and not those of any employer

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