This article was originally published by Law360 and can be found here.
In the Nov. 9 decision in Nicole Owens v. State of Georgia Governor's Office of Student Achievement,[1] the U.S. Court of Appeals for the Eleventh Circuit grappled with the issue of what an employee must do when seeking accommodation of a disability that sufficiently triggers the employer's duty to accommodate or engage in an interactive process to determine whether to accommodate.
Although the underlying claim was brought under Section 504 of the Rehabilitation Act,[2] the decision has broad ramifications concerning workers' accommodation requests made to employers covered by Title I of the Americans with Disabilities Act[3] because the same legal standards apply to both laws.[4]
The appellate court began its analysis by observing settled law that "to trigger an employer's duty to provide an accommodation … a disabled employee must (1) make a specific demand for an accommodation and (2) demonstrate that such an accommodation is reasonable."[5]
The court's central holding addressed this second part of the worker's duty. In order to demonstrate that the requested accommodation is reasonable, the employee must: (1) put the employer "on notice of the disability for which [the worker] seeks an accommodation"; and (2) "provide enough information to allow [the] employer to understand how the accommodation would address the limitations [the] disability presents."[6]
From the employer's perspective, the Eleventh Circuit's ruling makes perfect sense. Unless the worker's disability is obvious, the employee, not the employer, generally has greater knowledge of the disability and its limitations. The employee is in the better position at the outset to describe how the requested accommodation would help the employee perform the essential job functions despite the limitations of the disability.
Prudent employers should implement policies and practices designed to elicit the necessary information from workers so as to make informed decisions about accommodations requests. As discussed further below, the Governor's Office of Student Achievement, or GOSA, prevailed on this claim in large part based on its good practices.
The underlying events began when Owens had a cesarean section childbirth in July 2018. At this time, she told her immediate supervisor she was experiencing unspecified "childbirth-related complications" and had two blood transfusions.[7] Owens' paid Family and Medical Leave Act leave expired on July 19, 2018. When GOSA informed her she was placed on unpaid leave as of July 20, 2018, Owens told GOSA she could begin teleworking on Aug. 6, 2018, and provided GOSA with two doctors' notes.[8]
The notes informed GOSA about the C-section delivery, indicated Owens was "doing well," and said she "'may' telework until November 2018." Owens never provided any details about the childbirth-related complications she mentioned to her supervisor or how telework would accommodate them.[9]
When Owens made the initial telework request, GOSA's executive director was unaware of any medical complications that would prevent Owens from working in the office, concluded the doctors' notes satisfied GOSA's "medical release" rule under its FMLA policy and approved the telework arrangement temporarily so that Owens could make childcare arrangements.[10]
Owens regularly kept her supervisor informed about her post-delivery medical appointments during the first six weeks of the remote work assignment. And her supervisor wrote Owens in early September asking about her six-week "milestone appointment."[11] Although the opinion is silent on this matter, it is likely that GOSA had either an existing policy requiring employees to keep management informed about medical conditions, or GOSA had included such instructions in the telework authorization. Adopting such rules is a best practice for employers.
The supervisor's proactive response is also laudable. As a best practice, whenever dealing with an employee's ongoing medical issues, the employer should keep written records of important dates, keep calendar notes for follow-up communications with the employees, keep notes of verbal conversations, and document requests in writing.
According to the Eleventh Circuit, during those six weeks, the supervisor had reported to the executive director her "concerns with Owens's productivity and responsiveness while teleworking."[12] This detail highlights another good practice. Managers and supervisors should be strongly encouraged to make contemporaneous records of employee performance problems or conduct at the time the events happen.
In this particular case, the expression of concern provided reasonable grounds for GOSA to request additional medical documentation when Owens provided a vague accommodations request in response to the supervisor's inquiry about the milestone appointment.
Owens asserted to her supervisor that due to complications from her C-section delivery, she needed to continue the remote work until Nov. 5, 2018. To support this request, she provided another doctor's note that merely stated she "may return to work" on Nov. 5, and "may continue to telework at home until then."
Because the note did not say Owens must telework or provide any specific details concerning why remote work was medically necessary, GOSA's executive director appropriately viewed this note as ambiguous and decided more information was necessary to ensure the telework request was not simply due to Owens' personal preference.[13]
GOSA's ensuing conduct provides a great road map for companies to follow when faced with worker requests for accommodations. GOSA's human resources director initially called Owens and told her the company required additional documentation showing the medical necessity of the telework request. A few days later, the human resources director followed up with a written request by sending Owens what the court called "reasonable accommodation paperwork."[14]
The reported decision does not indicate whether GOSA sent form documents, but creating form requests to cover these situations is a best practice. The three items in the paperwork are exactly what employers should ask for: (1) a verification of Owens' disability; (2) a description of limitations caused by the disability, and specifically restrictions to Owen's ability to perform job functions; and (3) suggestions and recommendations on any workplace accommodations that would permit Owens to perform the functions.[15]
Companies also should always ask for any time limits on restrictions. In other words, the employer should ask whether any stated restrictions are permanent or, depending on the particular circumstances, whether additional planned medical treatment or therapy will eliminate or substantially lessen the restrictions.
Asking for time frames is particularly important when the requested accommodation is a leave of absence — that is, a request not to perform any work at all. As most courts have held, it is not a reasonable accommodation to grant a leave when doing so fails to insure the employee will be able to return and perform job functions in the immediate future.[16]
After sending the written accommodations paperwork, GOSA continued exhibiting best practices. The human resources director contacted Owens 12 days after the initial request to inform her that she must either submit the completed paperwork the next day or return to work in the office in two days. When Owens replied the next day, saying she had not received the completed paperwork from her doctor and could not return to the office, GOSA's human resources and executive directors decided to allow Owens an additional week.
The human resources director then sent Owens a written final request that gave her new deadlines to return the paperwork or return to the office, and warned her that failure to comply might result in termination of employment.
When Owens did not return the completed paperwork, her supervisor wrote a memo to the executive director summarizing all of her interactions with Owens.
Then the supervisor emailed Owens asking if she would come to the office the next day, and when she did not respond, emailed the human resources director about the noncompliance. GOSA's executive director then fired Owens for failing to return the documentation or return to the office as instructed.[17]
GOSA's actions provide a textbook example of how an employer should respond to a request for accommodation where neither the disability nor the accommodation are obvious.[18] The Eleventh Circuit's clarification of what Owens should have done in response will assist practitioners in defending failure to accommodate and disability discrimination claims.
Plaintiffs raising those claims often argue that the employers failed to engage in the interactive process by exploring potential accommodations with the workers. As the Eleventh Circuit makes clear in this decision, unless the employee first demonstrates a requested accommodation is reasonable, the employer's duty to engage in this process never arises.[19]
So what did Owens fail to do? According to the court, her mere request to telework because of childbirth complications was not sufficient for several reasons. As the court framed her duty to successfully show the requested accommodation is reasonable, she had to "identify her disability and suggest how the accommodation will overcome her physical or mental limitations."[20]
Owens failed to meet the first part of her duty because she did not identify any statutory disability in the first place[21] or describe any specific limitations on her ability to perform her job arising from her asserted medical condition.[22] She also did not satisfy the second part, because neither she nor any of the doctors' notes provided actually explained why teleworking would alleviate any physical or mental limitations or restrictions imposed by the disability.
Notably, the court cautioned that this "informational burden" is "modest," and thus "a disabled employee need only identify a statutory disability and explain generally how a particular accommodation would assist her."[23] In light of this caveat, employers should refrain from overly intrusive or expansive demands for information about an employee's health and medical conditions.
Employers should focus on whether the employee has generally described a physical or mental condition that impairs a major life activity and the resulting limitations on the employee's ability to perform the job or comply with company policies. Employers can certainly challenge vague and conclusory statements by the employee or the employee's health care provider without demanding an employee's complete medical file.
The Owens decision delivers valuable guidance on the scope of the employee's obligations when seeking accommodation. Employers' lawyers will rely on this decision when arguing an employee cannot even make a prima facie case of failure to accommodate or discrimination in appropriate cases where the employee did not identify a disability or show why requested accommodation was reasonable.
Companies can learn from GOSA's example in at least two ways. First, the case shows how an employer can prepare for accommodations requests with policies, forms and training on best practices. Second, the case informs on how to actually respond in a productive, well-documented manner that either obtains the necessary information for the interactive process or an accommodations decision or provides evidence to defend against challenges to a denial of the accommodations request, or adverse job action following the request.
Randall Scott Hetrick is a partner and labor and employment team leader at Adams and Reese LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] No. 21-13200, — F4th —, 2022 WL 16826093 (11th Cir. Nov. 9, 2022).
[2] 29 U.S.C. § 794.
[3] 42 U.S.C. § 12111 et seq.
[4] 29 U.S.C. § 794(d); see also Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
[5] 2022 WL 16826093, at *1.
[6] 2022 WL 16826093, at *4.
[7] 2022 WL 16826093, at *1, *2.
[8] 2022 WL 16826093, at *1, *2.
[9] 2022 WL 16826093, at *1.
[10] 2022 WL 16826093, at *2.
[11] Id.
[12] Id.
[13] Id.
[14] 2022 WL 16826093, at *2, *3.
[15] Id. at *3.
[16] See Wood vs. Green, 2003 WL 1090412 (11th Cir. 2003) (Worker's request for "indefinite leaves of absence so that he could work at some uncertain point in the future … was not reasonable. The ADA covers people who can perform the essential functions of their jobs presently or in the immediate future.").
[17] 2022 WL 16826093, at *3.
[18] As the Eleventh Circuit observed, the law "does not require employers to speculate about their employees' accommodation needs." 2022 WL 16826093, at *4.
[19] 2022 WL 16826093, at *4.
[20] Id. at *5.
[21] Childbirth and pregnancy are not themselves "disabilities" under the ADA or the Rehabilitation Act because neither is the result of a "physiological disorder." 29 C.F.R. pt. 1630, App. § 1630.2(h). See also www.eeoc.gov/pregnancy-discrimination#
[22] 2022 WL 16826093, at *6.
[23] Id.