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A New Approach to ADA Accommodations

November 28, 2022

By Anthony Kaylin, courtesy SBAM Approved Partner ASE

A recent U.S. Federal 11th Circuit case upended the U.S. Equal Employment Opportunity Commission (EEOC) guidance as to disability and accommodations.  Under the guidance, an employee merely has a functional rather than a medical definition of disability, and the determination of whether an individual has a disability doesn’t necessarily hinge on the name or diagnosis of an impairment. Once an employer is on notice, they must engage in an interactive discussion concerning any accommodations.  Eventually it is the employer’s decision as to what the accommodation is.

The 11th Circuit changed the approach they would expect in a disability accommodation case by placing a greater burden on the employee.  It is a two-step approach.  First, the employee must identify their disability.  It would not be sufficient to simply state that they need an accommodation.  Second, they must provide information for how the accommodation they want would overcome the physical or mental limitations.

In Owens v. State of Georgia, No. 21-13200 (11th Circuit Court of Appeals, 11/9/22), Owens went on maternity leave and told her supervisor that she had a high risk pregnancy and suffered childbirth complications from a C-section and two blood transfusions. She had used up her FMLA and she brought in doctor’s notes that recommended because of her situation, she should continue remote.  However, the notes did not state that she couldn’t work in-person. Finding this information insufficient to support

Owens’s accommodation request, Georgia then asked Owens to either submit additional documentation or return to the office. When Owens failed to do either, GOSA terminated her employment.

“An employee must link her disability to her requested accommodation by explaining how the requested accommodation could alleviate the workplace challenges posed by her specific disability. The bottom line is that employees must give employers enough information to respond effectively to an accommodation request,” the panel wrote. 

The 11th circuit did not state that the disability identification has to be in detail, but it has to be identified and then provide why the accommodation request would be appropriate.  However, the panel did write based on the doctor notes provided by Owens that “there is no obvious limitation on functioning that arises from having had a C-section or a blood transfusion five or six weeks earlier.”

This decision helps employers in that the disability must relate to performance on the job and not simply something that may or may not impact work.  It gives them more certainty how to approach ADA situations.  However, this ruling only impacts the 11th Circuit currently.

“I think it runs completely against the EEOC guidance and years of law on the subject,” said Tom Spiggle, founder of employment law-focused The Spiggle Law Firm. “The statute itself and the regulations give employees a pretty wide latitude.”

On the other hand, “[t]he notion that in order to get some special treatment, this thing we call an accommodation, it seems self-evident that the employee should have to provide the employer with enough information to know how to accommodate, like what’s the need, what’s the challenge coming from your condition,” said Kenneth W. Gage, an employment partner at Paul Hastings LLP. “It’s not just having a condition, having a condition doesn’t get you all the way there,” he said. “It seems that they’re stating that is to me, and always has been to me, kind of an obvious requirement.”

From an HR standpoint, the courts may now try to reign in the accommodation process to require more information for any request made and require the disability to be related to work.  Therefore, it will be important coming into 2023 to work with legal counsel to tighten up policies and processes.

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