Yet Another Improper (and Appalling) Denial of Telework as Reasonable Accommodation

By Deborah J. Hopkins, July 9, 2024

Quick facts:

• The complainant had a painful skin condition that caused unpredictable flare-ups and fluid seepage from her lesions.
• She requested full-time telework as an accommodation and provided medical documentation of her limitations.
• The EEOC found the agency’s offer of two days of telework and a modified work schedule were not effective, and that providing full-time telework would not be an undue hardship.

If it’s a day that ends in “y”, it’s a day we see yet ANOTHER case involving a denial of telework as a disability accommodation, when there is a mountain of evidence (and supporting medical documentation) that telework is the only effective accommodation: Tania O. v. Army, EEOC App. No. Appeal No. 2022001333 (Jan. 31, 2023).

Why are some supervisors still opposed to telework – especially supervisors who know the employee performed acceptably on 100% telework for 10-plus months during the initial COVID lockdowns?

Consider the Tania O. case, cited above, where the complainant was diagnosed with hidradenitis suppurativa (HS), a skin condition that causes painful lumps to form underneath the skin, which can either break open and seep fluid, or form tunnels beneath the skin surface.

According to the complainant’s testimony, “I get the lumps under my armpits, under my breast, on my buttocks which prevents me from sitting, but I am mostly affected in my groin area, which is painful for me to walk because any type of clothes that can rub against it begins to irritate the lumps…They break open and leak all over my clothes…which causes me the need to change my clothes or pad my clothes.” Id. at 5.

The complainant requested a reasonable accommodation that would allow her to have situational telework in the event of an HS flare-up. The supervisor requested medical documentation, and the complainant complied, providing information from her physician which identified that:

• The complainant’s case of HS caused her to develop painful nodules and plaques (boils) that could be debilitating.
• Active flaring lesions can create a significant amount of drainage.
• Flare-ups can fluctuate in severity but can happen daily in patients during some phases of the disease.
• It can take several days for lesions to improve.
• Lesions in the groin/buttocks area make prolonged sitting, standing, or walking very difficult.
• Certain clothes, including work attire, can be difficult to wear during flare-ups.
• The leaking drainage has a strong odor, and also shows up visibly on clothing, which causes high levels of embarrassment in a public setting.
• Using public bathrooms with open/draining sores in the groin/buttocks area is very uncomfortable.
• Working from home can be very helpful during flare-ups to allow for increased comfort and reduced stress and embarrassment.

How’s that for specific?

Even still, the complainant’s supervisor did not approve her telework request, but suggested alternate accommodations — a sit-to-stand desk and a private office located near several restrooms. The complainant accepted the alternative accommodations but indicated that she disagreed with them and initiated the agency’s informal dispute resolution process. Id. at 6.

The complainant then renewed her telework request and the agency denied it but offered additional accommodations — toilet seat covers and an alternate work schedule, with hours from 7 a.m. to 4:30 p.m. The complainant once again disagreed with the offered accommodations, indicating they would not be effective, and informed the agency she was initiating an EEO complaint. The agency responded by issuing a memo informing the complainant that she could request FMLA leave to deal with her flare-ups, and that she could telework on Tuesdays and Thursdays.

In emoji speak, 🤦🏻‍♀️ and 😡 come to mind.

The complainant accepted the newest accommodations (after all, some telework is better than no telework, right?) but informed the agency shortly thereafter that the two days of telework were not working for her because her flare-ups were not limited to Tuesdays and Thursdays. Understandably frustrated, at one point the complainant asked her supervisor, “do you want me to come to work with no underwear and bra, and the boil bursts drains onto my clothing and chair and causes a [foul] odor.” Id.

The Commission sided with the complainant and found the agency violated the law because it failed to provide an effective accommodation:

None of the alternative accommodations the Agency provided [Complainant] alleviated her need to abstain from sitting, walking, and wearing clothing that aggravated her painful lesions during unpredictable flare-ups of her condition. The only accommodation the Agency provided that even remotely addressed her needs – the fixed telework days – was also ineffective because [Complainant’s] condition did not only flare on Tuesdays and Thursdays. Significantly and critically, neither [Complainant] nor her doctor can predict those days when her condition may flare.

Id. at 3.

In addition, the agency never demonstrated (or even contended) that providing the complainant with telework during her flare-ups would cause an undue hardship. Aiding the complainant’s case was her experience on 100 percent telework for 10 months during the COVID pandemic while maintaining successful performance.

Fellow humans, if you’re reading this, you probably agree with me that being stingy on telework when it would be an effective accommodation is an absolutely terrible idea. But you have my permission – nay, my pleading request – to pass this article along to anyone you think should receive the message. Hopkins@FELTG.com

Training on This Topic

• August 1: Telework as a Reasonable Accommodation, part of FELTG’s updated Reasonable Accommodation in the Federal Workplace series.