Remote work has become a central issue in disability accommodation law. A key question has emerged in the post-pandemic workplace: when, if ever, must an employer allow remote work as a reasonable accommodation under the Americans with Disabilities Act (ADA)? The Fifth Circuit’s decision in Hayes v. GStek offers one answer under federal law—but its reasoning may have less force in New Jersey, where courts interpret the New Jersey Law Against Discrimination (NJLAD) more broadly and more favorably to employees. See, Royster v. NJ State Police, 227 N.J. 482, 499 (2017); Viscik v. Fowler Equip Co., 173 N.J. 1, 16 (2002); Failla v. City of Passaic, 146 F.3d 149, 154 (3rd Cir. 1998).
The Hayes v. GStek decision
Albert Hayes worked as an IT systems administrator for GStek, a contractor serving the U.S. Army at Fort Polk. During the COVID-19 pandemic, he worked remotely. When on‑site operations resumed, Hayes was diagnosed with Autism Spectrum Disorder, Major Depressive Disorder, and Social Anxiety Disorder. He requested a permanent, full‑time remote arrangement as a reasonable accommodation under the ADA. The Army concluded that full‑time remote work was not operationally feasible for the position. GStek nevertheless permitted Hayes to work remotely several days per week, effectively providing a hybrid arrangement. Hayes sued after his request for permanent full‑time telework was denied. The district court granted summary judgment for the employer, holding that Hayes had not shown that full‑time remote work was a reasonable accommodation because physical presence remained an essential function of his job.
The Fifth Circuit Court of Appeals affirmed. The decision reflects several themes that are increasingly common in post‑pandemic Americans With Disability Act cases:
- Employers are not required to make indefinite remote work available merely because they allowed remote work during the pandemic.
- Courts continue to defer substantially to employers’ identification of “essential job functions.”
- Hybrid or partial‑remote arrangements may satisfy the ADA even when an employee prefers fully remote work.
Importantly, the Fifth Circuit emphasized that emergency measures adopted during the pandemic do not permanently redefine a job’s essential duties. Under federal law, temporary pandemic accommodations do not themselves convert into permanent entitlements.
Why Hayes is not the whole story in New Jersey
For New Jersey employers, the more pressing question is whether Hayes predicts how New Jersey courts will approach similar remote‑work disputes under the NJLAD. The answer is: not necessarily.
New Jersey courts routinely treat federal ADA decisions as persuasive but not binding when interpreting the NJLAD. They also repeatedly describe the NJLAD as remedial legislation to be construed liberally in favor of eradicating discrimination and ensuring equal access for individuals with disabilities. As a result, the accommodation analysis under NJLAD is often more demanding than under the ADA. In a case with facts like Hayes, a New Jersey court would likely scrutinize:
- Whether the employee had already performed the job successfully on a remote basis.
- Whether in‑person attendance is genuinely essential to the position’s core functions.
- Whether the employer engaged meaningfully in the interactive process.
- Whether claimed operational constraints are supported by concrete evidence rather than generalized preferences or assumptions.
Federal courts may accept an employer’s “we need people on site” explanation with relatively modest evidentiary support. New Jersey courts are more apt to ask whether the employer’s own practices—especially during the pandemic—undermine the assertion that physical presence is truly indispensable.
Has remote work changed what counts as “essential”?
One of the biggest unresolved issues in employment law is whether extended periods of successful remote work fundamentally alter how courts understand “essential functions.” Before 2020, employers often argued, “This job has always required physical presence.” After years of widespread telework, employees increasingly respond, “Your own pandemic operations show the job can be done remotely.” That argument may carry particular weight in New Jersey. A plaintiff could argue that an employer’s successful remote operations constitute direct evidence that physical presence is not, in practice, essential. Employers who maintained productivity with remote teams may face more skepticism when they later insist that on‑site attendance is indispensable to job performance.
The interactive process under the NJLAD
New Jersey courts place significant emphasis on an employer’s obligation to participate in a good‑faith interactive process with employees requesting accommodation. Even when the employer ultimately denies a preferred accommodation, courts may find liability where the interactive process is perfunctory or one‑sided.
New Jersey courts have faulted employers where they:
- Rejected requested accommodations out of hand.
- Failed to explore alternative arrangements or available technology.
- Relied on conclusory assertions about “operational needs” without specific evidence.
- Treated accommodation requests as burdensome interruptions rather than legal obligations.
By contrast, the Fifth Circuit’s analysis in Hayes focuses more heavily on operational necessity and deference to the employer’s judgment. A New Jersey court might focus more critically on what the employer did (or failed to do) during the interactive process: what options were considered, why alternatives were rejected, and whether the employer’s stated concerns are fact‑based.
Neurodivergence, mental health, and the NJLAD’s broad protections
Hayes also highlights an increasingly important category of cases: requests for remote work by employees with neurodivergent conditions or mental health disabilities. Hayes reportedly suffered from autism, depression, and social anxiety disorders. For individuals with those diagnoses, workplace structure, sensory environment, commuting requirements, and in‑person interpersonal demands can significantly affect their ability to function safely and effectively.
The NJLAD’s definition of “disability” is expansive. It expressly includes mental, psychological, developmental, and neurological conditions that prevent the normal exercise of mental or bodily functions or are demonstrable through accepted clinical or diagnostic techniques. N.J.S.A. 10:5‑5; see, e.g., Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385 (2002); Viscik v. Fowler Equipment Co., 173 N.J. 1 (2002); J.T. v. Dumont Public Schools, 438 N.J. Super. 241 (App. Div. 2014).
New Jersey courts consistently underscore that the NJLAD is remedial social legislation that must be liberally construed, particularly in disability cases. They have recognized protections for a broad range of mental and psychological conditions, even when symptoms are not immediately apparent, and have required employers and housing providers to make reasonable accommodations unless doing so would impose an undue hardship. In this context, a New Jersey court might ask a harder question than the federal court did in Hayes: can an employer insist on in‑person attendance when the nature of the employee’s disability makes the physical workplace environment itself psychologically harmful? While the ADA may leave employers more room to insist on physical presence, the NJLAD may restrict that discretion more tightly, especially where remote work has already been demonstrated to be feasible.
Practical guidance for New Jersey employers
New Jersey employers should not assume that favorable federal ADA decisions like Hayes automatically insulate them from NJLAD liability. Instead, employers should be prepared to demonstrate, with evidence, why the job truly requires physical presence and how they handled the interactive process.
In practice, employers should:
- Carefully document essential functions.
Describe why in‑person attendance is genuinely essential for specific roles (e.g., security requirements, hands‑on tasks, team supervision) and how those functions cannot be performed remotely. - Analyze and document why hybrid work may be insufficient.
If a hybrid arrangement is offered but full‑time remote work is denied, be prepared to explain why some on‑site work is necessary and how that relates to the employee’s job duties. - Thoroughly document the interactive process.
Keep records of:- the accommodations requested;
- the options explored (including technology and schedule modifications);
- the reasons for accepting or rejecting each option; and
- who participated in the discussions and when.
- Evaluate precedents in your own workplace.
Consider whether similarly situated employees have worked remotely—during the pandemic or otherwise. Inconsistent treatment can create evidentiary challenges and feed arguments that in‑person work is not truly essential. - Avoid conclusory “operational” justifications.
Where remote or hybrid arrangements are refused, back up operational concerns with specifics: client obligations, regulatory requirements, security protocols, or demonstrable impacts on performance or team function.
For New Jersey employers, the core takeaway is that Hayes v. GStek is helpful persuasive authority under the ADA, but it is not a shield against NJLAD claims. Remote work, especially for employees with mental health or neurodevelopmental disabilities, will continue to be a highly fact‑sensitive issue. Employers who treat remote work requests as serious legal questions, carefully document their reasoning, and engage in a robust interactive process will be best positioned to defend those decisions in New Jersey courts.
