December 15, 2022
Volume XII, Number 349
December 15, 2022
– Appellate Court Addresses How Much Information Employee Must Submit…by: Tasos C.Paindiris and David Mohl
– Improving Liquidity Through Real Estate Sale and Leaseback…by: Simone Wijngaard and Alexander van Hövell
– The Ultimate Lawyer Time Off Checklist by: Kamron Sanders
– PTO Announces Cancer Moonshot Expedited Examination Pilot Program by: Bernard P.Codd
– Do Law Firms Use HubSpot? by: CRM News and Updates, Lawmatics
– Litigation Minute: Year in Review—Trending Topics Across the 2022…by: Lindsay Sampson Bishop and Jacquelyn S.
Celender
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
– Supreme Court to Hear Case on Whether Lawsuits are Stayed During…
by: Ron Chapman, Jr.
and Zachary V.Zagger
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…
by: Michael H.Neifach
– Ankura CTIX FLASH Update – December 13, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– Australia: Climate and Sustainability-Related Financial Disclosure…by: Jim Bulling
– Ankura CTIX FLASH Update – December 9, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– Washington Supreme Court Affirms Ecology’s Authority to Bypass…by: Erika H.Spanton and Allyn L.
Stern
– NLRB Unleashes New Damages Against Labor Law Violators by: Mark J.Neuberger
– Illinois Appellate Court Weighs in on Biometric Data Policies by: David M.Poell and Kari M.Rollins
– FTC Issues Green Guides Questionnaire by: Phyllis H.Marcus
– Traveling for the Holidays: Planning for Successful International…
by: Ann H.Lee and Michael J.Bonsignore
– NYC Council Considering Proposal To Significantly Limit At-Will…by: Evandro C Gigante and Joseph C O’Keefe
– Webinar Recording: Navigating Today’s Privacy Compliance…
by: Cynthia J.Larose
– Pennsylvania Takes Emergency Action to Regulate Conventional Oil…by: David J.Raphael and Brianna K.Edwards
– A Look At The Upcoming European Unitary Patent And Unified Patent…
by: Angela B.Freeman, M.S.
and Rory P.Pheiffer
– Massachusetts Unveils New Workplace Poster, Notifications for…by: Rachel Reingold Mandel and Ashley Prickett Cuttino
– US Executive Branch Update – December 14, 2022 by: Stacy A.
Swanson
– Michigan Court of Appeals Hears Argument on the Adopt and Amend…
by: Luis E.Avila and Maureen Rouse-Ayoub
– California Wage and Hour Issues for Employers to Watch in 2023: Is My…by: Karen E.Wentzel and Michael W.
Kelly
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.Kohn and Grace Schepis
– SEC and CFTC Whistleblower Programs Reveal Continued Success…
by: Jason Zuckerman and Matthew Stock
– Prices Keep Rising: Labor Board Significantly Expands Remedies…by: David J.Pryzbylski and Aaron Vance
– More on Understanding the Medicare Overpayment Appeals Process by: Kendall R.Walker and Courtney G.Tito
– New York State Provides Protection for Use of Leaves of Absence by: Jonathan A.Wexler
– US Executive Branch Update – December 13, 2022 by: Stacy A.
Swanson
– Looking Ahead to 2023: Pay Transparency Developments by: Allan S Bloom and Evandro C Gigante
– What Does 2023 Hold for California COVID-19 Supplemental Paid Sick…by: Benjamin A.
Tulis
– AND ANOTHER ONE! TCPA CLASS DISCOVERY LIMITED: Third Party Subpoena…by: Jenniffer Cabrera
– Reminder: New Tax Forms for Retirement Plan Payment Withholding…by: Jeffrey M.Holdvogt and Diane M.Morgenthaler
– Ninth Circuit Answers Lingering Question on Scope of ‘Autodialer…
by: Joseph C.
Wylie II and Nicole C.Mueller
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…by: George Carroll Whipple, III
– Preparing for New SBA Certification Requirements for Veteran-Owned…by: Erin L.
Toomey and Frank S.Murray
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– HHS Bulletin: Covered Entities’ Disclosure of PHI Collected via…
by: Ryan P.
Blaney and Danielle L.
Brooks
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.Mitcham
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…
by: Eric J.Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…
by: David A.Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…
by: Lynn L.Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.
Dodds and Robert S.
Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…by: Paul V.
Kelly
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…
by: Michelle E.Phillips and Christopher M.Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…
by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…
by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…
by: Lynn L.Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…
by: David A.Lopez-Kurtz and Alex J.Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…
by: Adam S.Forman and Nathaniel M.
Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.
Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…
by: J.Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…
by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…by: Gregory Husisian and John E.
Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…
by: Adam C.Abrahms and Steven M.Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…
by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Considering Using Biometric Information? Adopt a Biometric Policy Now by: Mike H.Holland and Patrick J.McMahon
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.
Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– Fa-La-La Laws: Employer Liability Issues for Office Holiday Parties by: Katharine O.Beattie and Victoria Stockton Breese
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.Berhe
– BETO Postpones December 13, 2022, Webinar on SAF Grand Challenge…
by: Lynn L.Bergeson and Carla N.
Hutton
– New Year Brings New Laws for Illinois Employers by: Mikela T.Sutrina and Katherine H.
Oblak
– Decision in U.S.
v.
Holland by: Gabriel L.Imperato
– New Jersey Senate Labor Committee WARNs Effective Date of Amendments…by: Mark Diana and Brandon R.Sher
– Crypto Punked? Industry Bankruptcies Rattle Markets and Expose Major…
by: George P.Angelich and Dan Jasnow
– Global M&A Trends: A Wider Slowdown but Still on Track to Surpass…by: Louis Lehot and Brandee L.Diamond
– Top Five Labor Law Developments for November 2022 by: Jonathan J.Spitz and Richard F.Vitarelli
– “Cold-Pressed Juice” Lawsuit Permanently Dismissed by: Food and Drug Law at Keller and Heckman
– December 2022 AFS Privacy Report: Pandora’s Virtual Try-On Tool…
by: Eva J.Pulliam and D.Reed Freeman Jr.
– USPTO Releases New Guidelines Shortening the Response Deadline in…by: Luna M.Samman
– ‘No Exit’: SEC Sanctions Investment Adviser for Impeding…by: Peter D.
Hutcheon
– TradeTalk China: December 2 – December 9, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– $10.3 Million in Grants Awarded to Improve the Health of Long Island…by: EPA
– RE-STRUC: Tax Changes as of 2023 by: Thomas van der Vliet and Louisa van Isselmuden
– Episode 23: The Emerging Investigatory Focus on Telehealth: What You…by: Nathaniel M.Lacktman and Maureen M.
Stewart
– The CAC Assessment Collection – Part 2: What Must Be Done Before…by: Amigo L.
Xie and Dan Wu
Appellate Court Addresses How Much Information Employee Must Submit to Support an Accommodation Request
One of the many difficult issues employers face under the Americans with Disabilities Act (ADA) is determining what information a disabled employee must provide to an employer to trigger the employer’s duty to accommodate a disability.The U.S.Court of Appeals for the Eleventh Circuit addressed that question for the first time in Owens v.Georgia, No.21-13200 (11th Cir.Nov.9, 2022).
While the Court was evaluating a claim under Section 504 of the Rehabilitation Act of 1973, the ADA is construed consistent with the Rehabilitation Act.The Court has provided employers some guidance to assist with navigating the complex waters surrounding the interactive process between the employer and employee to determine reasonable accommodations.
The Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia.
Background
In 2016, Nicole Owens began working for the Georgia Governor’s Office of Student Achievement (GOSA) as a web content specialist.
In early 2018, Owens informed GOSA that she had a high-risk pregnancy.She took and exhausted her Family and Medical Leave Act (FMLA) leave entitlement shortly before giving birth.Subsequently, Owens notified her immediate supervisor that she was experiencing childbirth-related complications.Owens provided a doctor’s note advising that she “delivered a baby by cesarean section,” that she was “doing well,” and that she “may return to work via tele-work from her home.”
GOSA’s executive director believed this note qualified as a medical release to return to work and approved the request to work from home.
However, she did not believe that Owens’ request to work from home was due to any medical complications that would prevent her from working in the office.Rather, she allowed Owens to telework temporarily so she could make childcare arrangements.
Thereafter, Owens continued to have post-delivery medical appointments and kept her supervisor apprised of her status.Owens provided a second doctor’s note dated September 11, 2018, which advised that she “may return to work November 5, 2018” and “may continue to telework at home until then.”
GOSA determined that additional medical documentation was needed to determine whether any accommodations other than working from home were reasonable.GOSA’s Human Resources Department sent Owens accommodation paperwork for her doctor to complete.In the following weeks, GOSA asked Owens to provide the completed accommodation paperwork, but she failed to do so explaining that she was unable to “expedite” the “internal processes” of the doctor’s office.
Subsequently, GOSA issued Owens a final directive advising that her “[f]ailure to provide the completed reasonable accommodation documentation” by October 10, 2018, or “to return to the worksite” by October 11, 2018, “may result in termination of [Owens’] employment.”
On October 11, 2018, Owens notified HR that she had not received her medical documentation and that she would not be returning to work onsite that day.On that same date, GOSA terminated Owens’ employment for her failure to adhere to GOSA’s directive.
Owens brought claims against GOSA alleging failure to accommodate and retaliation under the Rehabilitation Act and discrimination under the Pregnancy Discrimination Act.The District Court granted summary judgment in favor of GOSA, finding Owens never triggered GOSA’s obligation to accommodate her because Owens failed to identify a specific disability or explain how remote work would accommodate it.Further, the court found that, even if Owens triggered GOSA’s duty to accommodate her, Owens was responsible for the breakdown in the interactive process.As to the remaining claims, the court found that Owens failed to demonstrate GOSA’s reasons for terminating her employment were a pretext for discrimination or retaliation.
Court’s Decision
On appeal, the Eleventh Circuit affirmed the lower court’s dismissal of the case.It held that to request a reasonable accommodation, an employee must (1) identify the specific disability and (2) suggest how the accommodation will alleviate the workplace challenges posed by the specific disability.
Even though Owens made a request for accommodation (teleworking), the appeals court said, she failed to put her employer on notice of the disability for which she sought an accommodation and failed to provide enough information to allow the employer to understand how the accommodation would address the limitations her disability presented.
The Eleventh Circuit noted that neither childbirth nor pregnancy qualifies as a disability.Owens’ childbirth-related complications may have been caused by or may have caused a disability, but she did not identify what that disability was in any of her communications with GOSA.
Because Owens failed to identify a disability, she similarly failed to explain how her request to telework would accommodate her disability.
Her doctor’s notes were inadequate, because they did not explain how her requested accommodation would alleviate any physical or mental limitation.
The Eleventh Circuit acknowledged that while employees, when requesting an accommodation, are not required to provide detailed or private information about a disability, they must explain generally how an accommodation would assist them with overcoming a physical or mental impairment.
Key Takeaways
The information that an employee must provide will depend on the particulars of each situation.Sometimes, there is a clear connection between the disability and the requested accommodation, such as an employee with an obvious mobility impairment seeking accommodation for access to a workstation.However, where the link between a person’s physical or mental limitations and the requested accommodation is unclear, the Eleventh Circuit determined that it is reasonable to require the employee to specifically inform the employer about how the accommodation sought will address the limitations before requiring the employer to initiate the interactive process.Simply providing a doctor’s note requesting an accommodation is not enough.The documentation provided by the employee (or employee’s doctor) must identify the specific disability and explain how the accommodation would alleviate the restrictions posed by the disability.
The Eleventh Circuit also determined that failure to timely return accommodation paperwork can be a legitimate non-discriminatory and non-retaliatory reason to terminate an employee’s employment.Employers should clearly establish deadlines to return or complete accommodation paperwork and communicate the consequences of failing to timely do so.When enforcing deadlines, however, an employer should be flexible if the employee is making good faith efforts to obtain the necessary information.
The Eleventh Circuit’s opinion provides helpful guidance for employers.
Of course, the various circuit courts sometimes differ on how legal issues should be analyzed..