Denying Request to Work Remote Not Discrimination if Employee Doesn’t Have a Disability

Requesting to Work Remotely

The plaintiff, Kheloud Allos, worked for the Poway Unified School District (PUSD) as a senior business systems analyst. In March 2020, when the COVID-19 pandemic shut down PUSD’s operations, Allos began working remotely from home.

When the stay-at-home order lifted later that year, PUSD required its employees, including Allos, to return to in-office work. However, Allos then provided PUSD with a doctor’s note stating that she “needs to work from home as much as possible due to COVID risk.”

An On-Going, Interactive Process

This initial doctor’s note — provided to PUSD in October 2020 — triggered an interactive process that would continue into 2022, during which Allos would continue to request to work remotely for a variety of reasons.

Upon receiving the initial note from Allos, PUSD held the first of six interactive process meetings with her to assess whether she had a disability that required accommodation, which it documented in an “Interactive Meeting Record.” After this initial meeting, PUSD offered Allos an initial accommodation of 30 days of working in the office for two hours every morning and then teleworking the remainder of the day — but at no time during the interactive process did PUSD concede that Allos had a disability that required accommodation.

Over the next several months, Allos submitted two more notes:

• A second note stating she was the primary caregiver for her mother and “recommend[ed] that [Allos] work[] from home full time (100%) of the time in order to accommodate her personal life events going on right now;” and
• A third note stating she needed to work from home due to her own medical history, which put her at “high risk for developing allergies/infections post vaccination.”

In April 2021, in response to these two notes, PUSD held a second interactive process meeting with Allos, explaining that it required all employees to return to full in-office work by May 2021. PUSD offered Allos the option of working in an enclosed office, rather than her cubicle, but Allos responded that she did not feel comfortable returning to work and would fear contracting COVID because she was unable to get a vaccine due to an alleged vaccine allergy. As for her stated need to care for her mother, PUSD responded with her available leave options. The meeting concluded with PUSD instructing Allos that she needed to return to work on May 3, 2021, or she could seek a leave of absence to care for her mother.

Allos then provided a fourth note, which stated she needed to work from home “due to having a high risk of contracting COVID-19 from underlying medical conditions.” She also submitted a “Request for Reasonable Accommodation” asking to “work from home full time for the foreseeable future” because she couldn’t be vaccinated due to adverse reactions to vaccinations and she had underlying medical conditions that put her at risk of contracting COVID.

In June 2021, PUSD held a third interactive process meeting with Allos. She continued to demand full-time remote work, and PUSD explained that its goal was to transition her back to the office full-time. She was offered a temporary accommodation allowing 50% in-office and 50% remote work through the end of July, as well as a private office and personal protective equipment. Through the end of July, Allos agreed to work in the office one day per week and remotely the other four days.

In August 2021, PUSD held a fourth interactive process meeting with Allos, during which she — again — requested only remote work. PUSD reiterated its goal of transitioning her back to full in-office work, and they agreed to a hybrid schedule through the end of November.

In November 2021, PUSD held a fifth interactive process meeting, during which Allos agreed to continue the hybrid schedule through July 2022 and then return to the office full time.

Over two days in July 2022, PUSD held a sixth and final interactive process meeting, during which Allos stated she would not return to the office and again requested to work entirely remote. They reached an agreement that Allos would continue to work a hybrid schedule until January 3, 2023, at which time she would transition to full-time in-office work or be placed on administrative leave. Neither option transpired, because Allos submitted a request for retirement instead.

Lawsuit

While the interactive process was ongoing, Allos filed a lawsuit against PUSD, alleging claims under California’s Fair Employment and Housing Act (FEHA) for:

• Disability discrimination;
• Failure to engage in the interactive process and provide reasonable accommodation;
• Associational discrimination and retaliation; and
• Claims for failure to maintain a safe and healthy workplace and retaliation in violation of the Labor Code.

PUSD filed a motion for summary judgment, asking the court to dismiss the case because her claims were barred by governmental immunity and failed because she could not establish that she had a disability under the FEHA.

The trial court granted PUSD’s motion and dismissed the case, which Allos then appealed.

Governmental Immunity Bars the Claims

The Court of Appeals upheld the lower court, finding her claims against PUSD were barred by the Government Claims Act — specifically, Section 855.4, which provides immunity from claims for injuries resulting from actions taken by a public entity to prevent or control the spread of disease in the community. The court held that to the extent her claims were based on PUSD’s decision to allow employees to work from home due to the COVID-19 pandemic and then require their return to work, the claims were barred by PUSD’s immunity afforded by Section 855.4.

Failure to Show Existence of a Disability Dooms FEHA Claims

Even if governmental immunity didn’t bar her claims, the court went on to hold that the claims still failed because Allos couldn’t show she had a disability under the FEHA. To qualify as a member of a protected class under the FEHA, a plaintiff must show that their alleged impairment constitutes a disability under the FEHA. For Allos to establish she was “physically disabled” under the FEHA, she had to show that she “(1) Has a physiological condition that both (a) affects a specific bodily system and (b) limits a major life activity; (2) Has a ‘record or history of’ such a physiological condition; or (3) Is ‘regarded or treated by’ the individual’s employer as having, or having had, any condition that makes the achievement of a major life activity difficult, or as having, or having had, a physiological condition that is not presently disabling, but that may become so.”

The court found that the only evidence outside of her self-serving statements — health records showing a reaction to a Tdap vaccine in 2012, health records showing two other vaccines received with no side effects and expert testimony that a suspected or self-diagnosed allergy to a vaccine doesn’t amount to a disability — wasn’t sufficient to establish Allos had a disability under the FEHA.

The court also rejected her argument that PUSD regarded her as disabled because it engaged in the interactive process with her. The court noted that PUSD had a legal obligation to engage in the interactive process under the FEHA and found the evidence showed that PUSD made it clear to Allos throughout the interactive process that it didn’t regard her as having a disability. The court noted that holding meetings to evaluate whether an employee has a disability and their request for accommodation is not an admission that the employee is in fact disabled.

Allos’s inability to establish she had a disability also doomed her claims that PUSD failed to engage in the interactive process and provide reasonable accommodations. As the court noted, an employer is not bound to engage in the interactive process with and provide accommodation to an employee who does not have a disability or who the employer doesn’t regard as having a disability.

Lastly, the court examined Allos’s claim for associational discrimination, which requires that a plaintiff suffer an adverse employment action because of their association with a disabled person. Her claim failed because she couldn’t show that she suffered any adverse action because of her association with a disabled person — in this case, her mother. Although PUSD threatened to place Allos on administrative leave if she did not return to the office by January 2023, it never actually did so because she voluntarily retired first, without any adverse consequence.

Allos also argued that PUSD retaliated against her for requesting to work from home and she was eventually constructively discharged. The court affirmed the dismissal of her retaliation claim — she was not entitled to accommodation because she had not established she had a disability, and PUSD’s decision not to allow full-time remote work did not constitute retaliation.

The court affirmed the dismissal of Allos’s remaining claims because she did not present any argument on appeal regarding why the lower court’s decision should be overturned.

Employer Takeaways

Employers should ensure they have compliant policies and procedures in place for responding to accommodation requests plus train supervisors and others within the organization who may receive those requests. In addition, employers can take the following steps to ensure accommodation requests are properly handled:

• As this case demonstrates, a prompt, thorough and well-documented interactive process is critical to meeting an employer’s obligations under the FEHA. As part of the interactive process, employers can provide the employee with a reasonable accommodation request form and medical certification to give to their health care provider — this allows the employer to get certification from the health care provider that the employee has a disability that requires accommodation and also helps the employer assess whether an accommodation would be effective in allowing the employee to perform their essential job functions.
• If there is any question about whether an employee does in fact have a disability, as in this case, the employer should be clear in the interactive process that it does not regard the employee as disabled so that it does not inadvertently concede the existence of a disability. This is important, as evidenced in this case, because if an employee does not have a disability, the employer has no obligation to accommodate
• Supervisors are often the first person an employee will go to when they need accommodation, so it is critical that they respond properly when an employee requests accommodation or provides information suggesting the potential need for accommodation. Supervisors should immediately report any accommodation requests or concerns to Human Resources or the appropriate person within the organization.
• Every request for accommodation is unique and must be individually evaluated. Don’t make assumptions about whether the requested accommodation is reasonable without considering the specifics of the employee, their restrictions and the essential functions of their position.
• Employers don’t necessarily have to provide the specific accommodation requested by the employee. They can offer an alternative accommodation if it will allow the employee to perform the essential functions of their position.
• If employers are considering denying an employee’s accommodation request, consult with legal counsel. While it may feel that an accommodation is an “undue hardship”, that is a difficult legal standard to meet and assessing whether an accommodation poses an undue hardship is best done in consultation with legal counsel.
• Don’t forget that a leave of absence can be a form of reasonable accommodation. If an employee is unable to return to work after exhausting pregnancy disability leave or a medical leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA) — or if they are unable to work due to a disability but are not eligible for leave under CFRA/FMLA — you should initiate the interactive process to determine whether additional leave as an accommodation is required.