Can a New York Employer Deny Remote Work as a Disability Accommodation?

On June 11, 2026, the Appellate Division, Third Department, reversed the dismissal of a state employee’s case against the New York State Office of General Services. The agency had ended her full-time telework after three years, marked her absent without leave when she missed office days, and withheld her pay. The decision is Matter of Smelyansky v New York State Office of General Services, 2026 NY Slip Op 03708 (3d Dept June 11, 2026).

The court did not order telework. It held that the agency never did the analysis the Human Rights Law requires before saying no, and that a jury could decide whether the AWOL marks were retaliation.

I represent employees on Long Island, and the call goes the same way. Take a billing analyst at an insurance office on Route 110 in Melville. She has worked from home for three years for an anxiety disorder her employer has known about from the start, with a satisfactory review every year. Now a memo says everyone is back four days a week and her accommodation ends with the quarter. The memo does not decide the question. Her job does. Our general remote-work employment guide covers pay and expenses.

What happened in Smelyansky

Rachael Smelyansky worked from home for three years as a Contract Management Specialist 1 at the Office of General Services, on an accommodation granted in July 2020 for anxiety related to COVID-19 exposure and renewed through early 2023. OGS never disputed that her anxiety was a disability under the Human Rights Law.

In early 2023, OGS decided to curtail remote work across the agency. In April 2023, she asked for a further extension, and on May 16, 2023, OGS denied it. The letter said she had to be physically present to obtain answers to “spontaneous process questions,” to benefit from “interpersonal exchange with coworkers,” and to receive “direction from managers in real time.” The agency offered a gradual return instead. An appeals committee upheld the denial, and on May 24, 2023, she agreed to return under the modified schedule.

She then took intermittent leave under the Family and Medical Leave Act for an ailing family member. When she did not report to the office as directed in June 2023, OGS designated her AWOL and withheld her compensation.

Supreme Court, Albany County, dismissed every claim on reargument in January 2025. The Third Department reversed on every point, under state law alone, and sent the case back to Albany County. Consequently, the question for the Melville analyst is not whether her employer may end a telework policy. It may. The question is whether it did the statute’s analysis before it ended hers.

Your job decides the question, not the memo

Executive Law § 296(3)(a) makes it an unlawful discriminatory practice for an employer “to refuse to provide reasonable accommodations to the known disabilities” of an employee “in connection with a job or occupation sought or held.” The claim has three elements: a disability as the statute defines it, the employer’s notice of it, and the employee’s ability to perform the essential functions of the job with a reasonable accommodation. In Smelyansky the first two were never in dispute. Consequently, the case turned on the third.

A reasonable accommodation, under Executive Law § 292(21-e), means “actions taken which permit” an employee with a disability “to perform in a reasonable manner the activities involved in the job or occupation sought or held,” and its list includes “job restructuring and modified work schedules.” The Third Department, citing Jacobsen v New York City Health & Hospitals Corp., 22 NY3d 824 (2014), read those sections to include a modified work schedule, and added that remote work “may constitute a viable reasonable accommodation.” The statute reaches every employer in the state; the Melville insurer is covered, and so is Nassau County.

The Third Department called the agency’s three reasons “vague communication and collaboration functions.” Labeling them essential was not enough, “particularly where its analysis was not tailored to petitioner’s job description and arguably applied to all employees working in diverse jobs.” Whether a task is essential “depends on the totality of the circumstances,” and the employer’s judgment “is not conclusive.”

Measured against the factors on the card, the agency’s record was empty. It did not identify her actual tasks or which of them required her presence, and it ignored the “major tasks, assignments, [and] activities” in her own performance evaluations: reviewing proposed contracts, preparing reports, communicating with stakeholders and guiding agency staff and bidders. OGS “conflated its preferred reasonable workplace goals with petitioner’s essential job functions.”

OGS was within its authority to end its pandemic-era telework policy. However, it “was still required to conduct an individualized assessment of petitioner’s ability to work remotely to accommodate her disability after it resumed primarily in-person operations.” Three years of effective remote work were part of the record it had to confront.

In my experience the denial letter decides these cases, because the employer writes it early and writes down what it was thinking. A letter that names the tasks that require attendance is hard to beat. A letter that names “collaboration” is the letter OGS wrote. The contrast case is Briffa v New York State Department of Health, 248 AD3d 1462 (3d Dept 2026), where the agency won because it made “an individualized assessment of the employee’s essential job functions and the impact on coworkers, supervisors and productivity” and proved a good-faith interactive process. The particulars separated the two cases; therefore, the Melville analyst’s first move is to ask, in writing, which of her tasks her employer says cannot be done from home.

Undue hardship is the employer’s burden, and it is specific

At oral argument, OGS conceded that the hardship it claimed was the “aggregated” effect of having two workforces, including the effect on in-office morale. That concession lost the point.

Executive Law § 296(3)(b) excuses only accommodations “which can be demonstrated to impose an undue hardship on the operation of” the business, and the regulation quoted in the opinion, 9 NYCRR 466.11(b)(2), defines undue hardship as “significant difficulty or expense to the employer.”

The morale argument did not particularize any of the statutory factors. The agency “did not identify any specific hardship arising from continuing petitioner’s work-from-home arrangement,” and its own staff conceded that “many members of the [procurement services] staff have been working from home successfully.”

If the Melville analyst’s employer cannot say what her accommodation costs, in dollars or in specific work that goes undone, it has not carried its burden. The three questions below are the analysis the agency skipped.

The paper that decides the case

The court reversed on documents the employee already had. Her performance reviews from the remote period showed satisfactory work and listed her major tasks. Her direct supervisor’s opinion that full-time telecommuting “was compatible with petitioner’s job duties” helped create a triable issue. The court also cited “internal emails that candidly minimized the impact of granting her accommodation,” a document a lawyer asks for in discovery.

The denial letter was evidence against the agency, because it “parroted agency-wide operational concerns.” The argument that wins is the one the employer’s own paper makes; therefore, your first job is to keep that paper.

Summary judgment is the make-or-break point. Your employer will move to dismiss, and everything will be argued. The motion gets decided on paper: the denial letter, the reviews from the years you worked from home, your supervisor’s email saying the job could be done from your house. If your employer marks you absent or docks you after you ask, it needs a documented, legitimate basis for that, and under New York law one with no nexus to your request. I tell employers to watch what they say and to document better, in the personnel file and not in someone’s memory. The same advice is yours. Put the request in writing, keep every reply, and write down the date each one reached you.

Our guide to personnel-file access under Labor Law § 210-b explains how to request the file. Bring these to the first call:

• The dated request and the denial letter.
• Your performance reviews for the years you worked remotely.
• Any email in which a supervisor said the job could be done from home.
• Pay stubs or time records showing any AWOL mark or deduction after the request.
• The names and titles of coworkers who still work remotely.

Retaliation after the request

After her grievance and her FMLA leave, OGS demanded that she “make up” missed office days, told her that “call[ing] out on each of your in-office days renders the key provision of the Reasonable Accommodation meaningless,” then marked her AWOL and withheld her pay.

Executive Law § 296(7) makes it an unlawful discriminatory practice “to retaliate or discriminate against any person because such person has” opposed a practice the article forbids, “filed a complaint, testified, or assisted in any proceeding under this article,” or “requested a reasonable accommodation under this article.” The request itself is protected activity, and so is a grievance over its denial.

The elements are protected activity, the employer’s awareness of it, an adverse employment action, and a causal connection. OGS did not dispute that her grievance was protected activity, or that “the AWOL designation, with consequential payroll deductions, was an adverse employment action.” Whether the agency’s stated reason was pretext went to the jury.

If your employer is private, two Labor Law sections may also apply, and the whistleblower section comes first because it carries punitive damages. Labor Law § 740(2)(a) forbids retaliation against an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation.” A written complaint that the denial violates the Human Rights Law’s accommodation duty can fit that language. The section gives a jury trial, a two-year limit, lost wages and benefits, reinstatement or front pay, attorney’s fees, a civil penalty of up to $10,000, and punitive damages “if the violation was willful, malicious or wanton.”

Labor Law § 215(1)(a) forbids an employer to “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee” because the employee “has used any legally protected absence pursuant to federal, local, or state law,” and it names “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time” as a penalty. A civil action under subdivision 2(a) of that section has a two-year limit and can recover lost compensation, reinstatement or front pay, liquidated damages of up to $20,000, costs and attorneys’ fees. Paragraph (1)(c) excludes state and municipal employees.

A lawyer should decide whether either section fits before you file; our Long Island retaliation page covers how timing is proved. Consequently, the dated log of every mark against the Melville analyst after her request is the causal connection, on paper.

The first week, in order

Start the week the memo arrives.

Sources

• Matter of Smelyansky v New York State Office of General Services, 2026 NY Slip Op 03708, 250 AD3d 1286 (3d Dept June 11, 2026): https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03708.shtml
• New York Executive Law § 292: https://www.nysenate.gov/legislation/laws/EXC/292
• New York Executive Law § 296: https://www.nysenate.gov/legislation/laws/EXC/296
• New York Labor Law § 215: https://www.nysenate.gov/legislation/laws/LAB/215
• New York Labor Law § 740: https://www.nysenate.gov/legislation/laws/LAB/740

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The Melville analyst’s case is not in the memo. It is in three years of reviews, the email in which her supervisor said the job could be done from home, and the denial letter she asks for in writing. OGS lost because its letter described goals and never one employee’s tasks, and then it docked the pay of the person who asked. Build the record before the denial arrives; our Long Island disability discrimination page covers the claims that follow.

If your employer ended your remote-work accommodation, refused to consider one, or marked you absent after you asked, call (516) 750-0595 with the denial letter, or request a free case review.