Just Because It Worked Before Doesn’t Make It a Reasonable Accommodation Now…

By Fiona Ong - Shawe Rosenthal LLP

August 19, 2024

Employers like predictability. And it would make sense that, for an employee who previously worked remotely, well, remote work should be a reasonable accommodation. But a recent case warns employers not to jump to that conclusion so quickly.

In Ali v. Regan, the employee suffered from severe allergies that could cause bleeding and itchy skin, face and arm swelling, and difficulty in breathing, seeing, walking and sleeping. For years, he worked in a private office. However, there was an office reshuffling during which the employee was allowed to work from home for a few months. When the dust settled (so to speak), the employee was assigned to a cubicle, where he worked for 4 years – until a heavily scented coworker moved into the desk next door.

The employee requested to be moved to an office, and in response to the proposal to move him to another cubicle, he noted that all other open cubicles were near other scent-wearers or printers that also triggered his allergies. After several months with no further response, the employee made a formal request for accommodation, and provided medical documentation to support his request, as required. Without further discussion, the employer told the employee that he was being granted the accommodation of working from home.

I’m sure it was a surprise to the employer (the federal Environmental Protection Agency) when the employee refused the accommodation – after all, he had previously worked from home for months! In following conversations, his supervisor offered to provide a home printer to facilitate his telework, but the employee told the supervisor that the printer fumes exacerbated his symptoms. He wanted an office. The supervisor offered to provide an air filter, but the employee stated that those had not worked in the past. He wanted an office. The employee tried other cubicles, but continued to suffer symptoms. He wanted an office. He asked his co-worker to stop wearing perfume, but the co-worker refused (?!!!). He wanted an office. He asked that scented co-workers be moved, but the employer responded that he had been offered the reasonable accommodation of working from home.

So, finally, the employee filed a formal internal complaint, asserting various accommodation, discrimination, harassment, and retaliation claims. He explained that he rejected the telework accommodation for multiple reasons, including that his home was not set up for office space, he could not have a printer at home because of his allergies, and his job required constant interaction, brainstorming, and feedback from others, without which he could never progress to team leader. When his complaint was rejected by an administrative law judge and affirmed by the Equal Employment Opportunity Commission (part of the complaint process for federal employees), he then sued, alleging many claims including violations of the Rehabilitation Act (the federal employee analog to the Americans with Disabilities Act). The federal district court then threw out all his claims.

The U.S. Court of Appeals for the D.C. Circuit, however, found the district court was too quick to toss the Rehab Act claims. Like the ADA, the Rehab Act requires employers to provide reasonable accommodations to employees with disabilities. Unlike the ADA, it does not require employers and employees to engage in an interactive process to determine the possible reasonable accommodations – but it notes that such a process can facilitate the identification of such an accommodation.

The D.C. Circuit rejected the district court’s determination that the employee had failed to engage in the interactive process; as the D.C. Circuit noted, the law does not require such a process. However, if an employee does not provide information that would enable the employer to identify a reasonable accommodation, the employee’s claim will fail. Here, however, the D.C. Circuit found that the employee had provided all information requested.

The D.C. Circuit also found that the proper focus of the inquiry was whether the EPA had provided a reasonable accommodation when it offered telework – and only telework. Because the employee asserted that he told the EPA why telework would not work, and because the EPA did not ask for more information about why the employee refused the telework accommodation, the D.C. Circuit determined that a jury could find that the EPA “jumped the gun by acting without discussing options in advance.” Moreover, the telework option was not “plainly reasonable” under the circumstances, as a jury could find that it would not allow the employee to perform the essential functions of the job, given the concerns above. And as the D.C. Circuit asserted, “Offering a willing employee a remote-work option is very different from forcing remote work on an unwilling employee as the sole option for accommodating that employee’s disability.”

So what are the lessons here? First, employers should keep in mind that telework is not always a reasonable accommodation. It will very much depend on the circumstances. Moreover, just because an employee might have used an accommodation previously does not necessarily make it reasonable in the future – there may be changes to an employee’s situation that render it unreasonable going forward. Or something that was acceptable for a short period may not actually be reasonable for a longer or indefinite period. In addition, it is important for employers to engage in the interactive discussion to determine what those current circumstances are.

As I noted in another blog post, “Employers, “When you assume, you make an ass out of u and me.” – Oscar Wilde (or not?*)“, assumptions can be dangerous. Proceed at your own risk!

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