Telework as a Reasonable Accommodation Requires an Individualized “Essential Functions” and Undue-Hardship Showing—Generalized Return-to-Office Rationales Are Insufficient

Introduction

Matter of Smelyansky v New York State Off. of Gen. Servs. (2026 NY Slip Op 03708 [3d Dept June 11, 2026]) arises from a state employee’s request to telecommute full time as a disability accommodation. Petitioner Rachael Smelyansky, a “Contract Management Specialist 1” at respondent New York State Office of General Services (“OGS”), alleged disability discrimination and retaliation under the Human Rights Law after OGS denied her continued full-time telework and later deemed her AWOL, withholding pay, amid disputes about in-office days and FMLA leave usage.

The litigation combined (i) a CPLR article 78 proceeding to annul OGS’s administrative denial of the accommodation request and (ii) a plenary Human Rights Law action for damages and equitable relief. The key issues were whether OGS lawfully denied full-time telecommuting by properly identifying essential job functions and undue hardship through an individualized assessment, and whether OGS retaliated against petitioner for protected activity in connection with the AWOL/payroll action.

Summary of the Opinion

The Third Department dismissed the direct appeal from the intermediate order (because the right to appeal it terminated upon entry of final judgment), but reached the issues on appeal from the final judgment. The Court reversed Supreme Court’s judgment and remitted for further proceedings, holding:

  • Discrimination (reasonable accommodation): OGS was not entitled to summary judgment. On this record—particularly without basic discovery—OGS failed to establish, as a matter of law, (a) what petitioner’s essential job functions were, (b) that those functions required in-person presence, or (c) that full-time telework would impose an undue hardship. Conclusory, agency-wide return-to-office justifications were insufficient, especially where petitioner had worked remotely for years with satisfactory performance.
  • Article 78: OGS’s administrative denial was affected by an error of law because it failed to apply the required individualized Human Rights Law standard and instead relied on generalized workplace goals and aggregate remote-work impacts. Supreme Court therefore erred in dismissing the petition as rational.
  • Retaliation: Summary judgment dismissing retaliation was improper. A triable issue existed as to whether OGS’s AWOL designation and pay withholding—based on conflicting interpretations of the modified accommodation and petitioner’s use of FMLA leave—was pretextual.

Analysis

Precedents Cited

1) Appellate procedure: review after final judgment

  • Matter of Williamson v Fischer, 96 AD3d 1304 (3d Dept 2012), lv dismissed 20 NY3d 995 (2013): The Court relied on this rule to dismiss the direct appeal from the prior order once final judgment was entered.
  • Matter of Champlain Ctr. N. LLC v Town of Plattsburgh, 165 AD3d 1440 (3d Dept 2018) and Silipo v Wiley, 138 AD3d 1178 (3d Dept 2016): These cases supported reaching the same issues on appeal from the final judgment under CPLR 5501(a)(1).

2) Summary judgment framework

  • Copeland Holdings, LLC v Gravity Ciders, Inc., ___ AD3d ___, 2026 NY Slip Op 02704 (3d Dept 2026): The Court applied the familiar burden-shifting rule: the movant must first establish prima facie entitlement with admissible proof; only then does the burden shift.

3) Human Rights Law duty to accommodate; essential functions; interactive process

  • Graham v New York State Off. of Mental Health, 154 AD3d 1214 (3d Dept 2017) and Matter of Vinikoff v New York State Div. of Human Rights, 83 AD3d 1159 (3d Dept 2011): Both were cited for the statutory obligation to provide reasonable accommodations and the core elements a claimant must show. Vinikoff was also central to the Court’s point that the article 78 review standard mirrors the discrimination framework in this setting.
  • Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 (2014): This is the opinion’s doctrinal anchor. The Court drew from Jacobsen that (i) the employee must be able to perform essential functions with a reasonable accommodation, (ii) employers generally cannot win summary judgment without a record showing a good-faith interactive process, and (iii) the inquiry into essential functions must be individualized and fact-specific rather than conclusory.
  • Briffa v New York State Dept. of Health, ___ AD3d ___, 2026 NY Slip Op 02180 (3d Dept 2026): The Court used Briffa as a near-term comparator—affirming denial of a remote-work arrangement where the employer made an individualized assessment and built an evidentiary record addressing essential functions, impacts, and the interactive process. By contrast, OGS’s showing here was too generalized.
  • Gill v Maul, 61 AD3d 1159 (3d Dept 2009): Provided the multi-factor “totality of the circumstances” test for whether a task is an essential function, emphasizing that the employer’s judgment is relevant but not dispositive.
  • Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 AD3d 58 (1st Dept 2020) and Phillips v City of New York, 66 AD3d 170 (1st Dept 2009): These decisions reinforced that the interactive process is central to disability accommodation law and that “essential functions” should be developed through that interactive exchange—not as a unilateral, litigation-driven assertion.
  • Matter of Hirsch v New York State Div. of Human Rights, 232 AD3d 1248 (4th Dept 2024): Cited to underscore that an employer’s view of essential functions is not conclusive; the inquiry remains fact-sensitive.

4) Telework as a possible reasonable accommodation

  • Laguerre v Natl. Grid USA, 2022 WL 728819, 2022 US App LEXIS 6328 (2d Cir Mar. 11, 2022, No. 20-3901-cv) and Matter of Schimenti v City of New York, 245 AD3d 722 (2d Dept 2026): The Court cited both for the proposition that remote work can qualify as a viable accommodation, rejecting any categorical rule against telework accommodations.

5) The employer’s prima facie showing on “cannot perform essential functions”

  • Rizzo v Board of Educ. of E. Aurora Union Free Sch. Dist., 247 AD3d 1558 (4th Dept 2026), Halvatzis v Jamaica Hosp. Med. Ctr., 163 AD3d 532 (2d Dept 2018), and Martin v United Parcel Serv. of Am., Inc., 104 AD3d 1173 (4th Dept 2013): These supported the framing that an employer moving for summary judgment may attempt to show the employee cannot perform essential functions even with an accommodation—but the Third Department held OGS did not make that showing here.

6) Fact-specific inquiry into actual job performance

  • Borkowski v Valley Cent. School Dist., 63 F3d 131 (2d Cir 1995) and Sharp v Abate, 887 F Supp 695 (SD NY 1995): These cases were invoked to stress that “essential functions” must be grounded in evidence of how the job is actually performed, not assumptions or generalized descriptions.

7) Article 78 standard

  • Matter of Ventresca-Cohen v DiFiore, 225 AD3d 9 (3d Dept 2024): The Court used this to restate CPLR 7803(3)’s standard for determinations made without an evidentiary hearing—whether affected by error of law, arbitrary and capricious, etc.—and then found an error of law in OGS’s approach.

8) Retaliation framework and proof of pretext

  • Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326 (2024) and Yegoryan v BB Med. & Dermatology P.C., 245 AD3d 1000 (3d Dept 2026): These supplied the elements of a prima facie retaliation claim under Executive Law § 296(7).
  • Keceli v Yonkers Racing Corp., 155 AD3d 1014 (2d Dept 2017): Provided the summary-judgment template in retaliation cases: defeat prima facie elements or show legitimate reasons with no triable issue of pretext. The Court held pretext could not be resolved as a matter of law on this record.
  • Davis v School Dist. of City of Niagara Falls, 4 AD3d 866 (4th Dept 2004): Cited to support that petitioner’s grievance constituted protected activity (and OGS did not dispute that point).

Legal Reasoning

  1. No categorical rule against telework; insistence on individualized proof. The Court accepted that OGS could change its pandemic-era telework posture, but emphasized that the Human Rights Law still demands an individualized assessment of (a) essential functions and (b) whether telework would enable performance without undue hardship. OGS’s denial letter relied on generalized assertions (collaboration, “non-verbal cues,” “real time” direction) untethered to petitioner’s actual duties, how often those duties arose, or why remote tools could not address them.
  2. Failure to establish “essential functions” on summary judgment—especially absent discovery. The Court faulted OGS for offering vague characterizations rather than evidence: no tailored task breakdown, no time-allocation evidence, no consequences analysis, no comparable-employee evidence, and no accurate job description. The Court also emphasized the real-world counterweight: petitioner worked remotely for approximately three years with satisfactory evaluations, undermining OGS’s claim that in-person presence was essential.
  3. Undue hardship must be particularized to the requested accommodation. The Court held OGS’s undue-hardship showing was largely “aggregate” and policy-based (two workforces, morale) rather than tied to the concrete burden of continuing this specific employee’s arrangement. Under 9 NYCRR 466.11(b)(2) and Executive Law § 296(3)(b), the hardship inquiry is factored and contextual; OGS did not develop those factors with record proof.
  4. Article 78: error of law in substituting agency preferences for statutory standards. The Court concluded OGS applied the wrong legal standard by conflating preferred workplace goals with essential job functions and by leaning on generalized impacts rather than the legally required individualized assessment. That legal misstep rendered the determination “affected by an error of law,” and Supreme Court erred by upholding it as rational.
  5. Retaliation: triable pretext issue regarding AWOL/pay withholding amid FMLA use. With disputes about whether petitioner had to “make up” in-office days when using FMLA leave, and without evidentiary proof resolving the parties’ competing interpretations, the Court held a factfinder could view the AWOL/payroll action as retaliatory or pretextual—precluding summary judgment.

Impact

  • Raises the evidentiary bar for employers opposing telework accommodations under the Human Rights Law. Employers—particularly public agencies implementing return-to-office policies—cannot rely on broad claims that in-person work is better for collaboration. They must demonstrate, with job-specific evidence, why physical presence is essential and why the requested telework arrangement cannot work.
  • Separates policy preferences from statutory “essential functions.” The opinion signals that a return-to-office policy may be legitimate operationally, yet still insufficient legally if used as a substitute for the individualized accommodation inquiry.
  • Strengthens article 78 challenges to accommodation denials. By characterizing the agency’s approach as an “error of law,” the Court provides a clearer pathway for employees to challenge accommodation denials administratively when agencies do not apply the correct individualized standard.
  • Encourages fuller records before dispositive motions. The Court’s emphasis on the absence of “rudimentary discovery such as depositions” suggests skepticism toward early summary judgment where essential-function and undue-hardship questions are inherently fact-bound.
  • Retaliation risk in attendance/pay decisions intertwined with leave and accommodation disputes. The decision cautions employers that punitive classifications (e.g., AWOL) and pay withholding, when tied to contested leave/accommodation interpretations, may create triable retaliation/pretext issues.

Complex Concepts Simplified

  • Reasonable accommodation: A workplace change that allows a person with a disability to do the job in a “reasonable manner” (e.g., schedule changes, modified workspace, potentially telework), so long as it is workable.
  • Essential functions: The fundamental duties of the job—not everything that is convenient or preferred. Courts look at multiple factors (job descriptions, actual practice, time spent, consequences, etc.), not just the employer’s say-so.
  • Interactive process: A good-faith back-and-forth between employer and employee to understand limitations, job demands, and possible accommodations. It is not satisfied by a unilateral denial letter.
  • Undue hardship: A significant difficulty or expense for the employer. It must be shown with concrete, context-sensitive facts—size, budget, operational needs, and the nature/cost of the accommodation.
  • Summary judgment: A pretrial ruling that ends claims only when there is no genuine dispute of material fact. If key facts (like essential functions or pretext) are debatable, the case proceeds.
  • Article 78 “error of law” / “arbitrary and capricious” review: A court may set aside an agency decision if the agency applied the wrong legal standard or acted irrationally on the record.
  • Retaliation and pretext: Retaliation is punishment for protected activity (like filing a grievance). “Pretext” means the employer’s stated reason may be a cover for retaliation—often a fact question for trial.

Conclusion

Matter of Smelyansky v New York State Off. of Gen. Servs. reinforces that telecommuting can be a reasonable accommodation under the Human Rights Law and that an employer denying such a request must do more than invoke generalized return-to-office rationales. The Third Department demanded a genuinely individualized, evidence-based showing of essential job functions and undue hardship—and treated failure to apply that individualized standard as an error of law in the article 78 context. The decision also underscores that adverse attendance/pay actions amid accommodation and leave disputes can present triable retaliation issues, particularly where the employer’s justification may be viewed as pretextual.