Employers With Blanket Return-to-Office Policies Risk Litigation

A federal appeals court has handed disabled employees the clearest weapon they’ve had in years. On Aug. 18, the US Court of Appeals for the Third Circuit ruled that an employer can’t simply declare in-person work “essential” — it must prove it, in front of a jury, with real evidence. The holding exposes the flimsy justification behind nearly every blanket return-to-office mandate issued since the Covid-19 pandemic ended, and it should terrify any employer still relying on one.

The case is Gardner v. Kutztown University. A professor with an autoimmune disorder taught remotely for over a decade before the university abruptly reinstated an in-person mandate and denied her requests to keep doing what she had already proven she could do well. The university argued that in-person teaching was simply an “essential function” of her job.

The Third Circuit disagreed, holding that whether in-person presence was truly essential is a question for a jury, not something an employer can declare by fiat after years of evidence to the contrary. Blanket policies that treat every teleworker’s job as identical can’t substitute for the individualized, fact-specific inquiry the Americans with Disabilities Act demands, the court held.

What distinguishes Gardner isn’t that the ADA requires individualized assessments — it always has. The decision refuses to let employers skip that step on a dismissal motion. Courts have long released employers from these cases early by declaring that a job requires a physical presence. Gardner closes that door and rejects blanket return-to-office mandates as a replacement for individualized review.

Employers can no longer count on avoiding trial when denying telework accommodations on the basis that the job requires an in-person presence. Instead, a jury makes that decision after all the discovery, depositions, and costs that come with it. Granting the accommodation up front is now the cheaper move.

I represent workers with disabilities for a living, and I’ve watched employers make the university’s mistake in Gardner countless times. I know this because it’s my life. I have spinal muscular atrophy, a progressive neuromuscular condition that stole my ability to walk when I was 11 years old. I’m also an employment discrimination litigator. For years, it felt as though those two facts couldn’t coexist in an industry that expected me in the office five days a week, which it determined was an essential function of the job.

From the inaccessible subways and sidewalks in New York City to a scarcity of accessible bathrooms in any workplace, restaurant, or public place, my body suffered from the exhausting task of simply getting to work five days a week. Then the pandemic sent every attorney in the country home, and employers could no longer claim my daily presence in the office was necessary.

Working from home didn’t make me less productive; it did the opposite. I stopped spending my days on things that had nothing to do with the law — commuting, finding accessible parking, navigating an inaccessible workplace — and started spending that energy on my clients and cases instead. It let me work more hours, not fewer, and have the endurance for days- and weeks-long mediations, arbitrations, and trials. It let me stay in this profession, earn a living, and maintain my health.

That was always the deal Congress offered, too. When it passed the ADA, Congress found that discrimination against people with disabilities “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity,” and that the law exists to secure “equality of opportunity, full participation, independent living, and economic self-sufficiency.”

For 30 years, ramps, elevators, and lawsuits moved that needle unevenly and slowly, while disability employment regressed — until remote work became commonplace and did in two years what three decades of litigation couldn’t. Employment among people with disabilities hit its highest level since 2008, with labor force participation climbing three times faster for workers with disabilities than for everyone else.

My advice to employers is simple: Take Gardner seriously, and get more generous with telework accommodations now, before a jury makes you. For nearly two years, US employers sent employees home and still got the job done, which makes it awfully hard to now claim that letting one disabled employee keep doing the same job from the same home office is an “undue hardship.”

Even the federal government learned this the hard way: After agencies stripped telework from employees with disabilities under blanket return-to-office orders with no individual assessment, the Eastern District of Virginia in Panian v. Blanche ordered the Justice Department to reinstate telework for two of its own disabled attorneys. Employers who keep gambling on blanket mandates instead of individualized assessments aren’t avoiding litigation risk — they’re financing it, one denied accommodation at a time.

Gardner, Panian, and the growing chorus of decisions behind them confirm that telework accommodations aren’t per se unreasonable, while blanket return-to-office orders are. Employers can accept that now, at the negotiating table, or they can accept it later, in front of a jury, after years of discovery and a verdict with their name on it. The choice — and the bill — is theirs.

The case is Gardner v. Kutztown University, 3d Cir., No. 25-1295, unpublished 8/18/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Kami Z. Barker is of counsel at Goddard Law in New York, where she litigates employment discrimination and disability rights cases in courts across the nation.

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