Under the ADA, Full-Time Teleworking Is Rarely a Reasonable Accommodation
In Hayes v. GSTEK, Inc., 175 F.4th 603 (5th Cir. 2026), the 5th Circuit recently clarified a few major points regarding failure-to-accommodate claims under the Americans with Disabilities Act of 1990 ("ADA"). Moreover, Chapter 21 of the Texas Labor Code ("Chapter 21") expressly provides for the execution of the policies embodied in Title I of the ADA and its subsequent amendments and the Texas Supreme Court has held that analogous federal statutes and cases interpreting them guide Texas courts' reading of Chapter 21. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 818 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012). Therefore, Texas courts will likely cite to the Hayes case when adjudicating Chapter 21 failure-to-accommodate claims involving telework requests.
The Basics: Failure-to-Accommodate Claims 101
First, to prevail in a failure-to-accommodate claim, a plaintiff must prove: "(1) the plaintiff is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations." Hayes, 175 F.4th at 607.
Second, it is the plaintiff's burden to show that he is qualified under the ADA. Id.
Third, a plaintiff can show that he is qualified if he shows "(1) he could perform the essential functions of the job in spite of his disability or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job. Id.
Fourth, if there is no "available reasonable accommodations that would . . . enable[]" an employee "to perform the essential functions of his job," he is not "qualified under the ADA." Id.
What Most Employees Don't Realize about Failure-to-Accommodate Claims
Courts are highly deferential to what employers deem to be "essential functions of the job," but they are not at all interested or concerned about what employees believe to be essential functions:
In determining what constitutes "the essential functions [*608] of the job," courts are required to give "consideration . . . to the employer's judgment." 42 U.S.C. § 12111(8); see also Credeur v. La. Through Off. of Att'y Gen., 860 F.3d 785, 792 (5th Cir. 2017) (Courts "must give greatest weight to the 'employer's judgment'"). [**7] Courts can also consider other factors such as "[t]he amount of time spent performing the function[,] . . . the work experience of past incumbents in the job or current incumbents in similar jobs[, and] . . . the consequences of not performing the function." Credeur, 860 F.3d at 794. Courts should not consider an "employee's personal judgment" about what constitutes the essential functions of the job. Id. (emphasis omitted).
Id. at 607-08. Consequently, in most cases, when an employer deems in-person work attendance to be an essential job function, courts are going to agree with the employer. In fact, that's been established law since before the COVID pandemic. See Credeur, 860 F.3d at 793. Since the COVID pandemic, many employees assumed that telework would be an easily attainable accommodation under ADA or Chapter 21. But even before the Hayes court held that the COVID pandemic did not change the reality that in-person work is presumed to be an essential function of most jobs, 175 F.4th at 608, the 2nd Court of Appeals of Texas reiterated the courts' steadfastness in recognizing that physical presence is an essential function of most jobs. Univ. of Tex. at Arlington v. Esimai, No. 02-25-00569-CV, 2026 LX 191197, at *13-17 (Tex. App.—Fort Worth Mar. 26, 2026, pet. filed).
The Hayes court also reiterated that an employer's ability to supervise an employee is a factor in determining whether a teleworking accommodation is reasonable because direct, in-person supervision is easiest when the employee shows up regularly at work. Hayes, 175 F.4th at 608.
The Biggest Takeaway from Hayes: If You Can’t Show Up, You Aren’t Qualified for the Job
Here's the straightforward analysis:
1. If an element of a failure-to-accommodate claim is that the employee is a qualified employee with a disability;
2. An essential element of a job is in-person attendance; and
3. The employee "'need[s] to work from home' in order to perform the functions of his job" 175 F.4th at 609; then
4. The employee is not qualified for the job because the desired accommodation would not enable the employee to perform the essential job function of in-person attendance. Id.
And if an employee is not qualified for a job, the employee can be lawfully terminated by the employer.
If you have any questions about failure-to-accommodate claims under the ADA or Chapter 21 of the Texas Labor Code, please schedule a consultation today. Consultations are completely confidential. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.