Seyfarth Synopsis: A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no affirmative request is made.
The courts and the Equal Employment Opportunity Commission (EEOC) have made clear for decades that an employer’s obligation to engage in the interactive process under the Americans with Disabilities Act of 1990 (ADA) is not triggered until the employee seeking reasonable accommodation actually requests assistance.
To quote a recent case decided by the EEOC: “generally an individual with a disability must request a reasonable accommodation by letting the [employer] know the individual needs an adjustment or change at work for a reason related to a medical condition” Adina P. v. Brennan, 2016 EEOPUB LEXIS 336 (EEOC 2016). To be sure, no “magic words” have been required and no court would expect each employee to ask for a “reasonable accommodation” by those words, but, until now, courts have uniformly required that an employee at least indicate that she wants help or assistance because of a disability.
Earlier this month, though, a divided panel of the Eight Circuit Court of Appeals, lowered the bar substantially and held that a jury should determine whether an employee requested a reasonable accommodation by simply notifying her supervisor that she could not obtain a required CPR certification until after she completed physical therapy. See Kowitz v. Trinity Health, et al., Case No. 15-1584 (8th Cir. October 17, 2016). The employee never asked to be given extra time to complete the certification, nor to be transferred to another position that did not require CPR certification. Still, the majority held that a reasonable jury could find that the employer “understood” the employee’s communications to be a request for accommodation. Id. at p. 9, n. 1.
The dissenting judge reiterated the point that virtually every employer would assume to be true: “an employee who wants additional assistance cannot ‘expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it” Id. at p.12 (citation omitted).
Blurring a Bright Line
Thus, what was a bright line rule has been blurred, but, as usual, the particular facts of the case may have driven the majority to this hand-scratcher of a result.
The plaintiff was a respiratory therapist with cervical spinal stenosis, She had undergone surgery, and had returned to work on October 19, 2010 with the restriction of a reduced schedule until November 29, 2010 (yes, the dates may be important). In the meantime, on November 19, 2010, her supervisor posted a memo directing all of the respiratory therapy department’s employees to provide updated copies of their basic life support (BSR) certifications by November 26 and added :”If you are not up to date you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BSR class”.
On November 30, having already passed the written component of the BSR test, the employee wrote a letter to her supervisor indicating that she “will not to be able to do the physical part of the BSR” until cleared by her doctor, with whom she had an appointment on December 2 and also thanked the supervisor “for understanding [her] condition”. On December 2, the employee’s doctor opined that she could not take the physical portion of the BSR test until she had completed at least four additional months of therapy. The employee left a voicemail with the supervisor that evening. The very next day, December 3, she was terminated for failing to provide the certification.
This sequence of events (and perhaps the seemingly harsh and abrupt decision to terminate) lead the majority to conclude that the employee’s written notification of the need for clearance and her follow-up communication about needing four months of therapy “could readily have been understood to constitute a request for reasonable accommodation”. Id. at 9.
Bad facts often make for bad law, and many employers in the same circumstances would have taken the logical step of engaging the employee in an interactive dialogue. But, as the dissent rightly noted, the idea that there can be such a thing as an implied or understood request for accommodation generates “regrettable uncertainty” by “eliminating the requirement of a clear request for accommodation”. Id. at 13.
Employers take heed: a request for reasonable accommodation may be implied by the circumstances in some instances. As a result, it is more dangerous than ever to ignore the warning signs that an employee is seeking help.