When “We’re Still Reviewing It” Becomes a Legal Denial of Reasonable Accommodation
Dec 03, 2025If you’re a federal employee with a disability and your reasonable accommodation request has been “pending” for months while you’re told to just come in anyway—or burn your leave—you’re not imagining it: delay itself can become discrimination.
In this post, I want to do something most legal blogs don’t do: walk you through the actual legal framework, regulation, and cases on delay in reasonable accommodation, and then connect that to what’s happening right now at HHS and CDC.
This is going to be nerdy on purpose, because many of you are lawyers, HR, ER/LR, union reps, or just very sophisticated employees trying to make sense of a bad situation.
Before we dive into the cases, I want to say this as clearly as I can: even with all of this information laid out, if you think you have a strong reasonable accommodation case, trying to navigate it alone is usually a very bad idea. Not because you’re not smart enough—you absolutely are—but because this system is built with hidden traps: strict and confusing deadlines (like the 45‑day EEO contact clock and short windows to amend or appeal), complicated choices between processes (EEO, union grievance, MSPB, OWCP, disability retirement), and a mountain of agency counsel, HR, ER/LR, and internal policies working on the other side. What you say in an early email, how your medical documentation is framed, whether you pick the right theory (delay, denial, harassment, reprisal), and how you respond to “interim” offers can quietly make or break your case months or years down the road. I see people all the time who came to me after they tried to “just file something” on their own, and by the time I see it, critical claims are time‑barred, evidence is missing, or the agency has boxed them into a bad narrative that’s hard to unwind. A good attorney who understands federal disability law isn’t just there to write legalese—they’re there to help you plan the strategy, protect your timelines, frame the facts and the law the right way from day one, and carry some of the emotional load so you’re not trying to litigate your own case while you’re sick and still working. So please treat this blog as what it is: a roadmap to help you spot issues and ask better questions, not a do‑it‑yourself kit. If the stakes are high—and for most disabled federal employees they are—you deserve someone in your corner whose only job is to get this right. That said, I get that lawyers are expensive and like providing information to people to help them assert their rights, so here you go.
Important disclaimer before we go any further
I’m an attorney who represents federal employees and applicants nationwide, but this post is general legal information, not legal advice about your situation. Reading this does not create an attorney–client relationship with me or my firm. Your facts matter, your agency matters, your deadlines matter.
If you’re in this territory—especially if your health or career is being harmed while your request sits—you should talk with a qualified attorney about your specific facts. This stuff is complex, and you should not rely on a blog post, even a detailed one, as a substitute for individual representation.
The real-world backdrop: HHS, CDC, and a massive backlog
Here’s the situation, in plain English.
CDC shut down its own Accommodation Tracking System and centralized reasonable accommodation requests at HHS. According to internal memos, HHS is now facing a backlog of roughly 3,330 pending CDC accommodation requests, and the department is telling employees it expects it will take six to eight months just to work through the backlog.
At the same time:
- CDC employees are being told that telework should not be given as an interim accommodation while a request is under review.
- Employees who requested telework as an accommodation are being told to report to the office or use leave until a decision is made.
- Some employees have been told that telework can’t be a regular or full-time reasonable accommodation at all.
- This is happening in a workplace that recently experienced an active shooter incident and still reportedly has unrepaired bullet holes on campus.
Employees with disabilities—many of them immunocompromised, mobility-limited, or dealing with serious mental health conditions—are being told to show up in person, while their accommodation requests are stacked in a months-long queue.
So the legal question is: at what point does “we’re still reviewing it” become a denial of accommodation under the Rehabilitation Act?
The basic legal framework: Rehabilitation Act, ADA, and the interactive process
For most federal employees, disability accommodation rights come from:
- Section 501 of the Rehabilitation Act, 29 U.S.C. § 791,
- which incorporates the standards of the ADA, including 42 U.S.C. § 12112(b)(5)(A).
That ADA provision makes it unlawful to fail to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless doing so would impose an undue hardship on the agency.
For federal agencies, the EEOC has adopted ADA regulations and guidance, and those apply to you.
One key regulation:
29 C.F.R. § 1630.2(o)(3) – This requires an “informal, interactive process” between employer and employee to identify an appropriate accommodation when needed.
And in its Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002), Question 10, the EEOC says two critical things:
- The employer should respond expeditiously to a request for reasonable accommodation.
- “Unnecessary delays” in providing reasonable accommodation can violate the ADA.
So, it’s not just the final “yes” or “no” that matters. The timing and the process matter too.
The five key factors EEOC uses to analyze delay
In that Enforcement Guidance and in its decisions, the EEOC looks at five main factors when deciding whether a delay crosses the line into unlawful denial:
- The reason for the delay.
Was there a genuine external obstacle (e.g., waiting on specialized equipment that no other vendor sells)? Or is the delay caused by internal confusion, bureaucracy, or agency-created backlog? - The length of the delay.
We’re not talking about a few days of processing. We’re talking weeks, months, sometimes more than a year. - How much each side contributed.
Did the employee sit on medical documentation for months, or insist on conditions that made it impossible to move forward? Or did the employee respond promptly while the agency sat on the file? - What the employer was doing during the delay.
Were they actively exploring options, offering interim accommodations, and communicating? Or did they go radio silent and do nothing? - Whether the accommodation was simple or complex to provide.
An ergonomic chair or a keyboard is not the same as a reassignment across the country, or a completely rebuilt schedule in a 24/7 facility.
When I look at a case, I run through these five factors almost automatically. The courts and the EEOC do too.
Federal appellate courts: delay can equal denial
Two key federal appellate cases make this explicit.
Valle-Arce v. Puerto Rico Ports Authority
In Valle-Arce v. P.R. Ports Auth., 651 F.3d 190 (1st Cir. 2011), the First Circuit held that unreasonable delay can amount to a failure to provide reasonable accommodation. The agency:
- Delayed for months,
- Didn’t follow its own accommodation procedures, and
- Eventually imposed a rigid schedule that didn’t actually meet the employee’s needs.
The court held that whether the agency failed to reasonably accommodate her—based in part on the delay and the poor process—was a jury question.
Bhogaita v. Altamonte Heights Condo. Association
In Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277 (11th Cir. 2014), the plaintiff requested an accommodation under the Fair Housing Act to keep an emotional support dog despite a weight limit. He provided documentation. The association responded with months of delay and repeated demands for more documentation, but no actual decision.
The Eleventh Circuit, citing Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000), held that:
“An indeterminate delay has the same effect as an outright denial.”
In other words: if the delay is long enough and the employer isn’t meaningfully moving toward a decision, the law may treat it as if they said “no”, even if they never put the word “denied” in writing.
EEOC decisions: what counts as an “unreasonable” delay?
The EEOC has applied these principles in a long line of federal sector cases. I’ll group some of them so you can see the pattern and the timeframes.
Delays the EEOC has found unlawful
Near one-year delay for telework equipment – unlawful
- Patricia W. v. Nielsen, Sec’y, Dep’t of Homeland Sec., EEOC No. 0120172637 (Mar. 26, 2019).
The complainant needed an ergonomic keyboard tray, a particular mouse, software, and training to telework full-time because of dexterity limitations. It took almost a year to get her what she needed. During that period, her performance suffered; she received a counseling memo and was placed on a PIP. EEOC held the agency unduly delayed and violated its duty to accommodate.
Three-month delay for an ergonomic chair – unlawful
- Ronnie R. v. Azar, Sec’y, Dep’t of Health & Human Servs., EEOC No. 0120161406 (May 31, 2018).
An employee with a significant knee impairment requested an ergonomic chair on December 1, 2014 and did not receive it until March 25, 2015. The delay stemmed from confusion and lack of knowledge about the accommodation process. EEOC found that a three-month delay for a simple item, with no good reason, was excessive and unlawful.
Ten-month delay in granting telework to an employee at risk of paralysis – unlawful
- Doria R. v. Cordova, Dir., Nat’l Sci. Found., EEOC No. 0120152916 (Nov. 9, 2017).
The complainant, with stage IV cancer, requested additional telework in February 2010 and didn’t receive it until November 2010. Each commute risked exacerbating her condition “to the point of paralysis.” EEOC found the ten-month delay unreasonable, with no evidence that the complainant contributed to it, and held that the agency failed to accommodate her.
Eighteen-month delay in providing a quiet workspace – unlawful
- Michelle G. v. Lew, Sec’y, Dep’t of Treas., EEOC No. 0120132463 (May 13, 2016).
The employee, who had attention deficit disorder, requested a quiet workspace. Management was on notice, but for roughly 18 months did not move her; instead, it issued negative performance feedback. EEOC labeled the delay an “egregious delay” and found a violation.
Four-month delay in fixing lighting for migraines – unlawful
- Yessenua H. v. McDonald, Sec’y, Dep’t of Veterans Affs., EEOC No. 0720070027 (Oct. 8, 2015).
The complainant needed proper lighting to manage migraines. The agency took nearly four months to install appropriate lighting—an accommodation that was not technically complex. With no good explanation for the delay, EEOC found a failure to accommodate.
Fifteen-month delay for a large-print keyboard – unlawful
- Legania v. Clinton, Sec’y, Dep’t of State, EEOC No. 0120121698 (Aug. 31, 2012).
A legally blind passport specialist requested a large-key, large-print keyboard. After multiple internal missteps and confusion about who was responsible, it took roughly 15 months to provide it. EEOC compared the agency’s behavior to an example in its own Guidance (where a three-month unavoidable delay was acceptable) and held that this was the opposite: an unnecessary, unjustified delay, and thus a violation.
Five-month delay for simple process changes – unlawful
- Complainant v. Donahoe, Postmaster Gen., U.S. Postal Serv., EEOC No. 0120140129 (Mar. 25, 2014).
The employee, who had obsessive-compulsive disorder, requested simple changes: being allowed to take notes, recheck locks, recheck her vehicle, and keep a log of certain tasks. No special equipment, no real cost. The agency took five months to approve these accommodations, and only did so after a grievance. EEOC held that the delay was unnecessary and violated the Rehabilitation Act.
Six-month delay with no activity – unlawful
- Villanueva v. Dep’t of Homeland Sec., EEOC No. 01A34968 (Aug. 10, 2006).
The employee requested a reasonable accommodation in February. The agency did not respond until October. There was no explanation, no indication the employee contributed, and no evidence the agency was acting on the request in the interim. EEOC found the six-month delay unlawful and awarded significant compensatory damages.
Nine-month processing delay—even at EEOC itself – unlawful
- Shealey v. Berrien, Chairman, EEOC, EEOC No. 0120070356 (Apr. 18, 2011).
Yes, this is the EEOC’s own house. The complainant requested accommodation in July 2003. A Deputy Director didn’t issue a final determination until nine months later, far outside EEOC’s own 15–20 day internal target. EEOC found that the delay was unjustified and constituted a violation of the Rehabilitation Act.
These are not edge cases. They’re examples the EEOC uses to illustrate the principle: where the delay is substantial, unjustified, and the accommodation is reasonably straightforward, the delay itself can be treated as a denial.
Delays the EEOC has not treated as unlawful
To be fair, not every delay results in liability. Context matters.
Short delays for simple equipment
- Cruz v. Mabus, Sec’y, Dep’t of Navy, EEOC No. 0120100045 (June 16, 2011).
A one-week delay was found de minimis, not a violation. - Complainant v. McDonald, Sec’y, Dep’t of Veterans Affs., EEOC No. 0120122882 (Aug. 6, 2014).
A 56-day delay in ordering a larger monitor was described as “not commendably efficient,” but EEOC declined to call it discriminatory under the circumstances.
Delays where the employee contributed or interim accommodations were offered
- Barham v. Geithner, Sec’y, Dep’t of Treas., Internal Revenue Serv., EEOC No. 0120112386 (July 30, 2012).
The complainant reacted to coworkers’ perfume and requested relocation. Over about five months, the agency offered multiple interim accommodations—alternative location, desk fan, door open, conversion of a conference room, telework options. The complainant rejected several. EEOC found that the agency acted with reasonable diligence and that any delay resulted from the interactive process, not stonewalling. - Rabby v. Rice, Sec’y, Dep’t of State, EEOC No. 0120071659 (Aug. 29, 2008).
The complainant, who was blind, requested a reader. The agency repeatedly posted the job, but the complainant insisted on participating in every interview and added extra education requirements, which sharply limited the candidate pool. EEOC found that the employee’s own conditions significantly contributed to the delay, and that the agency provided interim assistance through temps, interns, and other staff.
Delays tied to a lack of vacancy in the position sought
- Smith v. Shinseki, Sec’y, Dep’t of Veterans Affs., EEOC No. 0120083176 (July 19, 2012).
A nurse with PTSD and depression requested reassignment to the less stressful midnight shift. All four midnight positions were filled, and the agency allowed her to work some midnight relief shifts while she waited. It took about 21 months before a permanent vacancy opened, at which point she was reassigned. EEOC held that the agency was not required to “bump” another employee and that, under these facts, the delay was not an unreasonable failure to accommodate.
Delays tied to documentation/backlogs
- Mauricio C. v. Wilkie, Sec’y, Dep’t of Veterans Affs., EEOC No. 0120162551 (Aug. 14, 2018).
A request for FMLA leave (assumed arguendo to be an accommodation request) was not approved for several months. EEOC credited the agency’s explanation that it needed medical documentation, that the employee only provided it later, and that there was a backlog in FMLA processing. On those facts, the delay was not deemed unlawful.
Very short delays to implement light duty
- Latchison v. Potter, Postmaster Gen., U.S. Postal Serv., EEOC No. 0120062753 (May 14, 2008).
The complainant injured her leg and requested sedentary work. Within about 10 days, management offered her stool use and then a limited duty assignment within her restrictions. EEOC had no trouble finding no violation there.
So what does this mean for HHS and CDC employees right now?
Let’s go back to those five factors and plug in what’s publicly known about HHS and CDC.
- Length of delay.
HHS is projecting six to eight months just to work through the backlog of roughly 3,330 CDC accommodation requests. That’s before you add new requests coming in the door. In multiple EEOC cases, delays in this range—especially for straightforward accommodations—have been found unlawful. - Reason for the delay.
This backlog appears to be largely self-created: shutting down CDC’s system, centralizing at HHS, and layering on new telework restrictions. This is very different from a one-off supplier delay for specialized equipment. - Employee contribution.
Employees are being given tight deadlines (seven days to complete questionnaires, 20 days for medical documentation) and threatened with closure of their requests if they miss them. There’s no indication that employees are contributing to the larger backlog. - What the agency is doing during the delay.
According to the memos, CDC’s Office of Human Resources has said telework “should not be given as an interim accommodation,” and employees must still report to the office or use leave while their request is pending. That’s the opposite of what you see in cases where EEOC found no violation because the agency was actively offering interim accommodations. - Complexity of the accommodation.
Many of these requests are for telework, schedule changes, or basic equipment—the exact type of accommodations the EEOC has treated as straightforward, and where multi-month delays with no good reason have repeatedly been found unlawful.
On top of that, there’s the safety context: at CDC, employees were instructed to return to a campus that had recently been shot up, with bullet damage still visible. For employees with PTSD, anxiety disorders, or other serious conditions, that context is not legally irrelevant.
None of this guarantees any particular outcome in any individual case. But when you line up:
- The length of the delay,
- The self‑inflicted nature of the backlog,
- The lack of meaningful interim accommodations, and
- The simplicity of many of the underlying requests,
you are squarely in the territory where courts and the EEOC have said: this isn’t just slow bureaucracy anymore; this can be a denial of reasonable accommodation.
If you’re stuck in a backlog: practical steps
Again, this isn’t legal advice for your case, but here’s what I generally want federal employees to be doing when delay is the issue:
- Build a timeline.
Write out dates for:- When you first requested accommodation (even informally).
- When you submitted any forms or medical documentation.
- Every time the agency asked you for anything.
- Every response you gave.
- Any interim measures offered (or not offered).
- Save the paper trail.
Keep the memos, emails, and Teams messages saying things like:- “Telework cannot be used as an interim accommodation.”
- “Your request will be closed if you don’t provide X in seven days.”
- “Telework is no longer a reasonable accommodation at [component].”
- Document the impact of the delay.
That includes:- Worsening health symptoms, flare-ups, or new diagnoses.
- Use of sick or annual leave you would not have needed if the accommodation were in place.
- Performance write-ups, counseling, PIPs, or discipline tied to work you couldn’t do safely or effectively without the accommodation.
- Track inconsistency.
If HHS-level reasonable accommodation staff tell you one thing (“telework is still a reasonable accommodation at CDC”) and local management or HR tell you another (“telework is off the table”), write that down and save both communications. - Talk to counsel sooner rather than later.
If you have a strong Rehabilitation Act claim based on unreasonable delay, it will usually intersect with EEO deadlines (and sometimes MSPB, if removals or serious discipline are involved). An attorney who lives in this space can take your timeline, plug it into the legal framework I’ve laid out, and give you advice tailored to your situation.
Final thoughts
I’m writing this because I know how isolating it can feel to be told, month after month, that your request is “under review” while your body, your mind, and your career absorb the cost.
You are not asking for special treatment when you request a reasonable accommodation. You are asking your agency to follow the law.
The law does not say: “You’re entitled to accommodation… unless your agency is really backed up.” It says agencies must provide reasonable accommodation without unnecessary delay, and it treats certain kinds of delay as denial itself.
If you’re in the middle of this, please don’t try to carry it alone. Use this post as a starting point, not an ending:
- Share it with a coworker who’s also stuck in the backlog.
- Share it with a union steward or an ER/LR specialist who’s trying to get their head around the legal risk.
- And if the facts I described sound uncomfortably close to your reality, consider reaching out to a qualified attorney—whether that’s my firm or someone else—who can look at your specific facts, your deadlines, and your documents, and give you advice that’s actually tailored to you.
You deserve better than “we’re still reviewing it” on an endless loop.