Did a federal appellate court just require employers to invent ADA crystal balls?

Magic 8 Ball - Instrument Of Evil? (2426454804)

Actually, as I see it, yes, Eric is utilizing hyperbole.

But, this recent Eighth Circuit opinion in a case involving the duty to accommodate under the Americans with Disabilities Act is a dicey one for employers.

The plaintiff in Kowitz v. Trinity Health (opinion here) began working  as a respiratory therapist, before transitioning into the position of lead technician in the blood gas laboratory. As a lead technician, the plaintiff was required to have basic life support certification. That required taking a written examination and performing a physical demonstration of CPR.

Now, as these ADA cases go, the plaintiff had a disability. Here, the plaintiff had surgery for a neck issue, after which she could not immediately complete the physical portion of the CPR exam. Through her doctor, the plaintiff communicated to her employer that she would need to complete at least four extra months. Shortly thereafter, the employer fired the plaintiff because she could not perform the essential functions of the job; i.e., perform CPR.

No magic accommodation words required.

When a disabled employee requests an accommodation for her disability, the employer must engage in an interactive process with the employee to determine whether a reasonable accommodation is possible.

Here, the plaintiff argued that her employer “should have allowed her additional time to complete her basic life support certification, or reassigned her to another position that did not require the certification.” However, the lower court concluded that the plaintiff never requested either of these accommodations, or any other ones.

But, the appellate court, well, it concluded that what the plaintiff did was close enough to coming out and asking for a reasonable accommodation:

Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then….Kowitz’s written notification that she would be unable to complete the basic life support certification without medical clearance, and her statement that she required four months of physical therapy before completing the certification, could readily have been understood to constitute a request for a reasonable accommodation of her condition.

Now, the dissent — wait for it — disagreed. Judge Colloton concluded that the plaintiff didn’t go far enough to put the employer on notice that she needed an accommodation:

There is no requirement to use magic words like “reasonable accommodation,” but the employee’s notice must “make it clear to the employer that the employee wants assistance for his or her disability.”… It is undisputed that Kowitz never requested an accommodation for her inability to perform basic life support. She merely informed supervisor Reinertson that she was unable to attempt to obtain a basic life support certification until she had completed four months of physical therapy. That notification of Kowitz’s disability does not create a genuine issue of fact concerning whether Kowitz requested an accommodation. 

Tips for employers.

  1. Take some initiative. While the law tasks the employee with requesting an accommodation, if an employee tells you that she has a disability, there’s nothing stopping you from broaching the subject of reasonable accommodations by affirmatively asking her what you can do to help. Doing so may avoid a lawsuit like the one described above.
  2. Considering treating an FMLA request as a request for an ADA accommodation. That’s the EEOC’s position; namely, that when an employee requests FMLA for her own serious health condition, her employer should consider that as a request for a reasonable accommodation. And, while that accommodation would be FMLA leave, the employer can continue to advance the ball by communicating with the employee during her leave to ensure that the company is doing whatever is reasonable to enable the employee to return to work and perform the essential functions of the job with or without accommodation.
  3. Additional leave after FMLA expires could be a reasonable accommodation too. The EEOC has lots of guidance on that here.
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