Employers Cannot Ignore An Employee’s Potential Need For An Accommodation Under The Americans With Disabilities Act

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees on the basis of disability. To establish a prima facie case of discrimination on the basis of disability, an employee must establish that he or she (1) has a disability within the meaning of the ADA, (2) is a qualified individual under the ADA; and (3) suffered an adverse employment action because of the disability. To be qualified under the ADA, an employee must (1) possess the requisite skill, education, experience, and training for the position held or desired, and (2) be able to perform the essential functions of the position, with or without a reasonable accommodation.

Employer’s Duty To Make Reasonable Accommodations

Discrimination under the ADA includes not making reasonable accommodations to the known physical or mental limitations of an individual with a disability. Thus, the ADA establishes a cause of action for disabled employees whose employers fail to reasonably accommodate their disability. A reasonable accommodation under the ADA includes job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and an allowance of time for medical care or treatment. If an employee is unable to perform the essential functions of his or her position because of his or her disability, then the reasonable accommodation may include reassigning or transferring the employee to a vacant position so long as the employee is qualified for the position and it does not impose an undue hardship on the employer.

The Request For Accommodation & The Interactive Process

An employer’s obligation under the ADA to provide a reasonable accommodation for an employee’s disability is not triggered until the employee makes an adequate request for an accommodation. In order to make an adequate request for an accommodation, an employee is not required to refer to the ADA or use the words “reasonable accommodation.” However, as explained by the U.S. Eighth Circuit Court of Appeals in EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790 (8th Cir. 2007), “[a] disabled employee must initiate the accommodation-seeking process by making his employer aware of the need for an accommodation . . . and the employee must provide the relevant details of his disability and, if not obvious, the reason that his disability requires accommodation.”

Once an employee makes an adequate request for an accommodation for his or her disability, the employer is required by the ADA to engage in an interactive process with the employee to determine the appropriate reasonable accommodation. The interactive process involves discussion and exchange of information between the employee and the employer, and sometimes with the employee’s health care providers. The U.S. Equal Employment Opportunity Commission’s interpretive guidelines for the ADA explain that the interactive process “should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). The employer must know of both the disability and the employee’s desire for an accommodation for that disability to trigger the employer’s duty to engage in the interactive process.

Employee Does Not Have To Use Magic Words “Reasonable Accommodation”

In Kowitz v. Trinity Health, — F.3d –, 2016 WL 6068146 (8th Cir. Oct. 17, 2016), the Eighth Circuit addressed the issue of whether an employer’s duty to make a reasonable accommodation under the ADA is triggered when the employer has sufficient information to know of an employee’s desire for an accommodation. In that case, Roberta Kowitz (Kowitz) claimed that her employer, Trinity Health, violated the ADA by discharging her on the basis of disability. Kowitz worked for Trinity Health as a respiratory therapist. Kowitz suffered from cervical spinal stenosis, a degenerative spinal disease, for which she took a 12-week leave under the Family Medial Leave Act (FMLA) to have corrective surgery. After exhausting her 12-week FMLA leave, Kowitz returned to work with restrictions. Shortly after Kowitz returned to work, Trinity Health notified employees that they had one month to provide updated copies of their cardiopulmonary resuscitation (CPR) certifications, which required a written exam and a physical CPR demonstration. Kowitz, who certification had lapsed, passed the written exam but told her supervisor that her doctor said she could not perform the physical demonstration until she had completed at least four additional months of physical therapy. The next day, Trinity Health fired Kowitz because she was unable to perform CPR.

Kowitz maintained that Trinity Health was required to reasonably accommodate her disability by reassigning her to a vacation position. In dismissing Kowitz’s ADA claim, the trial court concluded that Trinity Health did not fail to reasonably accommodate Kowitz’s disability because she never requested an accommodation. The critical issue on appeal before the Eighth Circuit was whether Kowitz made an adequate request for a reasonable accommodation for her disability and, thus, triggered Trinity Health’s duty to engage in the interactive process to determine the appropriate accommodation before firing her.

In reversing the trail court’s decision and reinstating Kowitz’s ADA claim, the Eighth Circuit held that an express request for assistance is not required to trigger an employer’s duty to engage in the interactive process to determine the appropriate reasonable accommodation. The Eighth Circuit found that even though Kowitz “did not ask for a reasonable accommodation of her condition in so many words,” Kowitz’s “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.” Thus, the appellate court reasoned, “Trinity [Health] should have understood—or did understand—Kowitz’s communications to be a request for an accommodation.” In support of its holding, the court explained that “[a]n employee is required only to provide the employer with enough information that, under the circumstances, the employer can fairly be said to know of both the disability and desire for an accommodation.” Thus, when Kowitz advised her supervisor that she would be “unable to complete the physical requirements of her [CPR] certification until she had done four months of physical therapy,” Kowitz was “not required to formally invoke the magic words ‘reasonable accommodation’ to transform that notification into a request for accommodation.”

Kowitz establishes that when an employer is made aware of an employee’s disability and need for an accommodation, the employer is obligated to participate in the interactive process and make reasonable efforts to determine the appropriate reasonable accommodation. Kowitz further establishes that when an employer is made aware of an employee’s disability and need for an accommodation, the employer cannot repudiate its obligations under the ADA by claiming that the employee did not invoke the protections of the ADA by making a formal request for a reasonable accommodation or using the magic words “reasonable accommodation.”

Consultation With Employment Law Attorney

We have extensive experience representing employees who have been subjected to disability discrimination and other types of discrimination in the workplace. If you believe that you have experienced disability discrimination, or have questions about requesting an accommodation for a disability or the ADA interactive process, please contact our office for a free consultation.