Two Standards, One Workplace
An Inconsistent Approach to Workplace Accommodations under the Return-to-Office Directive.
Prior to 2023, it was easy for federal agencies to disapprove a religious accommodation, including a request to telework. They only had to show that the accommodation resulted in a “more than de minimis" cost to the agency - a very low bar. Today, with an enhanced undue hardship standard from the Supreme Court and mixed signals from the Office of Personnel Management (OPM), I am left wondering - is the government now playing favorites with religious accommodations? Let's dive in.
Origin and Purpose of Workplace Accommodations
First, let's differentiate between reasonable accommodations and religious accommodations (it is not uncommon to see these terms mixed and/or used interchangeably). A reasonable accommodation is a workplace modification that allows an employee or applicant with a disability to perform the essential functions of their position. A religious accommodation is an adjustment to the work environment that allows an employee or applicant to comply with their religious beliefs while also performing the essential functions of their position.
Both types of workplace accommodations are required by law. Reasonable accommodations for employees and applicants with disabilities are required by Title I of the Americans with Disabilities Act (ADA) of 1990 (as amended by the ADA Amendments Act (ADAA) of 2008), and Title VII of the Civil Rights Act of 1964 requires agencies to reasonably accommodate an applicant or employee's sincerely held religious belief, practice, or observance that conflicts with the work environment.
These accommodations help ensure a fair and inclusive work environment, provide more job opportunities to individuals who might otherwise be excluded from employment, and expand the pool of qualified workers across the government. However, in both cases, the requested accommodation must be balanced against the cost to the employer.
An employer may deny an accommodation request if it imposes an "undue hardship." More specifically, a reasonable accommodation may be denied if the accommodation would cause a significant difficulty or expense, which can be determined by looking at the nature and cost of the accommodation requested, financial resources of the employer, and impact to operations. Generally, federal agencies have substantial financial resources when compared to the cost of a requested accommodation, so impact to operations is generally the primary concern.
A religious accommodation may be denied if the burden to the organization would be substantial in the overall context of the employer’s business. This is a relatively new standard that was established by Groff v. DeJoy, a 2023 Supreme Court decision. Prior to Groff, agencies could deny a religious accommodation if it posed a "more than de minimis" cost to the agency. This new standard put religious accommodations more on par with reasonable accommodations.
Return to Office Directive
On January 20, 2025, President Trump directed federal agencies to take "all necessary steps to terminate remote work arrangements and require employees to return to work in-person at their respective duty stations on a full-time basis." (Return to Office Directive)
This guidance was aimed at the worst stereotypes of federal employees. The reality is that the federal government employs over two million people. Are they all perfect? No. (And, yes, I remember the VA employee who posted a photo of himself in a bubble bath with his government laptop in 2022. Not ok.) Are most of them dedicated and hard-working public servants? Yes. What the return to office directive failed to recognize is the range of work ethic that exists in every workforce. It also failed to recognize the benefits of telework and remote work for both the employee (accommodate disability or religious practice, work-life balance, job satisfaction) and the employer (recruitment tool, retention incentive, continuity of operations during periods an employee would have otherwise been on leave).
Although this directive eliminated telework and remote work for most employees, it correctly noted that there must be exceptions. The directive stated that it "shall be implemented consistent with applicable law," which includes the ADA, ADAAA, and Title VII.
Side Note: The return to office directive used the term "remote work," but guidance published after this directive targeted both telework and remote work. As a reminder, remote work occurs when an employee is working full-time from alternative worksite (often their home), and the remote worker’s alternative worksite is the official duty station reflected on their latest SF-50. Telework occurs when an employee works from an alternative worksite on a regular and recurring or a situational basis. Their official duty station remains at the organization's regular worksite, and they have some in office reporting requirement.
OPM: Playing Favorites?
Over the following months, OPM issued a series of memos to implement the return to office directive. The first memo was issued on January 22, 2025, and it directed agencies to revise telework and remote work policies to require employees to work full time at their duty station unless "excused due to a disability, qualifying medical condition, or other compelling reason certified by the agency head and the employee's supervisor." (OPM’s January 2025 Memo) After this, guidance continued to flow from both the OPM and agency level, and by and large, most guidance recognized that some employees may be approved to telework or remote work as an accommodation if they are qualified employees with a disability.
In July 2025, OPM issued a memo titled, "Reasonable Accommodation for Religious Purposes." (OPM’s July 2025 Memo) This memo encouraged agencies to approve requests for religious accommodations, including telework requests, and it specifically noted the new Groff standard. At first glance, it appears that OPM is making sure that religious accommodations are not forgotten, because most of the preceding guidance discussed employees with a "disability" or "qualifying medical condition" and not religious beliefs. Interestingly, the memo stated, "[t]elework is often a low-cost solution” and “typically does not impose substantial operational burdens,” and it encouraged agencies to approve these requests.
In September 2025, the Department of Justice (DOJ) Office of Legal Counsel issued a memo titled, “Religious Liberty Protections for Federal Employees in Light of Recent Legal Developments.” (DOJ’s September 2025 Memo) This memo concludes that “situational telework can and should be used as a form of religious accommodation despite the ‘in-person work’ directive.”
Now, let’s hop forward to February 2026. OPM issued another memo titled, "Telework Accommodations for Disabilities in the Federal Government." (OPM’s February 2026 Memo) This guidance had a very different tone than the OPM and DOJ memos. It stated that "telework and remote work are only available in very limited situations,” and it repeatedly called telework "a high-impact accommodation" and "significant.” Notably, the third footnote of the frequently asked questions attachment stated that this guidance "does not address telework given as an accommodation for reasons other than disability, such as for religion or pregnancy.” The February 2026 guidance goes on to encourage federal agencies to revisit and reassess existing telework accommodations and even consider centralizing review of telework accommodations, which takes the responsibility out of the hands of the first line supervisor (the person who knows the position and the employee the best).
I can’t help but wonder - how can telework be "low-cost" and generally not pose an operational burden when requested as a religious accommodation, but be "high-impact" and "substantial" for reasonable accommodations?
The process by which a religious and reasonable accommodation is evaluated is quite similar - the agency must examine the costs and operational impact of the accommodation. While the undue hardship standard is worded slightly different for religious versus reasonable accommodations, it is hard to imagine these standards could lead to such a different result.
To be fair, the DOJ memo specifically notes they are addressing situational telework and the July 2025 OPM memo contains some qualifiers like “on a limited basis” when talking about telework. Maybe they are just more comfortable with occasional telework as an accommodation option? However, the July 2025 OPM memo provides telework examples that are easily construed as regular and recurring telework, including telework on the sabbath and telework to allow for time-specific prayers during the workday. In these cases, the memo says that agencies are “strongly encouraged” to consider telework. Moreover, the tone of the July 2025 memo on religious accommodations is much more favorable when compared to the February 2026 memo on reasonable accommodations. The February memo even goes so far as to encourage agencies to use an employee’s public social media as evidence they do not have a disability and should not be permitted to telework as an accommodation. Overall, this gives the appearance of inconsistency in the treatment of employees with disabilities vice sincerely held religious beliefs.
What Now?
I suspect OPM's February 2026 guidance has prompted most federal agencies to revisit previously approved telework and remote work arrangements, and possibly move towards a more centralized, less individualized review process. You might be going through this process right now.
Employees requesting telework or remote work as a workplace accommodation (or working through a re-evaluation of their previously approved accommodation) should ensure they are addressing the concerns raised by the February 2026 OPM memo head on during interactive discussions. Employees should directly address the low-cost and low-impact nature of their requested accommodation. If these arguments work in the context of religious accommodations, then they should also work in the context of reasonable accommodations. It can’t hurt to cite OPM’s own admission that telework is a "low-cost solution” and “typically does not impose substantial operational burdens.” Also, keep in mind that many employees have been teleworking and/or working remotely without impact to work performance or agency operations. If an accommodation has worked for years with little to no cost to the agency, the agency should be hard pressed to argue undue hardship.
Employees should also ensure their agency is evaluating the facts and circumstances of their specific request. Employees are entitled to an individualized assessment of their requested accommodation. Even OPM guidance reminds agencies that they cannot take a blanket approach to accommodation requests.
Finally, if you have had an accommodation denied or rescinded, consider contacting an attorney with experience in federal employment law to learn more about your avenues of redress.
How agencies interpret and implement the latest OPM guidance remains to be seen, but my hope is that agencies take a fair and consistent approach when they execute their accommodation programs. Regardless of whether employees are requesting an accommodation based on a disability or a religious belief, they deserve to be treated fairly.
