Permanent Telework May Not Be a Reasonable Accommodation

Takeaway: This case highlights the importance of engaging in a detailed interactive process with employees when handling accommodation requests.

The U.S. Court of Appeals for the District of Columbia Circuit decided that an employer could not require an employee with a disability to accept telework as a reasonable accommodation when the employee would rather work in person at the office.

The plaintiff worked as an economist in the U.S. Environmental Protection Agency’s (EPA’s) Office of Science & Technology. He long experienced severe allergies that resulted in bleeding, itchy skin, rashes, face and arm swelling, and difficulty breathing, seeing, walking, and sleeping. For about 10 years, he worked in a private office at the EPA. After an office reshuffling in 2007, he worked from home for months before being moved to a cubicle. At that time, he sued, claiming that the EPA failed to accommodate his allergies. He lost that claim for failure to provide requested medical information.

The plaintiff then returned to work in the cubicle without incident for more than four years. But in 2011, the EPA moved a co-worker known for wearing particularly pungent cologne to the desk next to him. The cologne triggered the plaintiff’s allergies and also made another colleague nauseous.

In November 2011, the plaintiff emailed two supervisors about his allergic reactions and asked to be moved to a private office or small conference room. One supervisor quickly emailed back to ask if the colleague’s cologne was the source of the allergies, which the plaintiff promptly confirmed. The supervisor offered to relocate him to an unoccupied cubicle while she worked on a permanent solution. He responded that the new cubicle was also “very perfumy” and that other free cubicles were near printers that triggered his allergies or had other problems.

The plaintiff repeated his request to move to a room instead of a cubicle, mentioning that management offered to move the colleague if the cologne became an issue. The EPA did not respond to his email. Two months later, he requested an accommodation under the Rehabilitation Act, attaching multiple doctor’s letters and providing information when requested.

In June 2012, the EPA determined the plaintiff to be a person with a disability and offered to meet with him to explore and discuss what accommodation, if any, may be effective. That same day, his supervisor sent him a letter that approved his accommodation request by permitting him to work at home full time. He had not requested to work from home. The EPA did not know about his home situation, and he had successfully worked in the office for the past four years.

The plaintiff responded by letter, stating that he thought working from home was not a good option. He reiterated his request for a private room and proposed locations where one might be available. The EPA did not respond. He also tried speaking with his supervisor about the situation. She offered him support for working from home, including offering to supply him with a printer for home use and allowing him to explore hybrid work options.

The plaintiff asked the co-worker to stop wearing cologne, but he refused. The plaintiff then identified two rooms in a different division to which he asked to be moved, but the EPA did not respond.

In March 2013, the plaintiff sent an email complaining about a different colleague’s “scented products” and asking that the colleague be moved. A supervisor responded five days later that he had been offered a reasonable accommodation of 100% telework and had declined the offer. The supervisor argued that moving the colleague would not help because the cubicles share the same common space and recirculated air. The plaintiff filed a formal complaint with the EPA’s Office of Civil Rights, alleging failure to accommodate, retaliation, harassment, and discrimination.

At the agency hearing, the plaintiff testified that he could not work from home because he did not have a home office, could not print documents at home without it causing him an allergic reaction, and needed to interact with colleagues. His supervisor testified that the EPA had commissioned an air quality test that showed there was little difference between the air quality in an office and in a cubicle. The administrative judge ruled in favor of the EPA, which was upheld on appeal by the U.S. Equal Employment Opportunity Commission.

The plaintiff filed suit in D.C. federal court. The district court granted summary judgment to the EPA, ruling that the plaintiff did not cooperate in the accommodation process. On appeal, the D.C. Circuit disagreed and found that the agency failed to discuss with the plaintiff his objections to working from home. It thus reversed the district court’s decision and required the court to hold a trial on his reasonable accommodation claim.

Ali v. Regan, D.C. Cir., No. 22-5124 (Aug. 9, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.