Employee May Be Entitled to Accommodation Even Without Asking

It is often the case that an employee who takes a FMLA leave for a “serious health condition” may also have a “disability” that requires accommodation upon his or her return to work.

A recent Eighth Circuit case cautions employers that their knowledge of the FMLA condition may trigger an obligation to engage in the interactive process under the Americans With Disabilities Act (ADA) based on the employee’s implied request for an accommodation.

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Roberta Kowitz worked for Trinity Health (the Hospital) as a respiratory therapist in the cardiopulmonary department and as a lead technician in the blood gas laboratory. Kowitz has a degenerative spine disease and took a leave under the Family and Medical Leave Act (FMLA) for a corrective neck surgery.  After exhausting her FMLA leave, Kowitz returned to work on October 19 with various temporary restrictions (including limiting her to 8-hour shifts and a 10-pound lift).  Her Return to Work form stated these restrictions should be in place for a little over a month (until November 29).  The Hospital honored these restrictions.

Following her return, on November 19, the Hospital issued a memo to the cardiopulmonary department employees regarding the need to maintain up-to-date basic-life support (BLS) certifications, requesting updated copies of the employees’ certifications by November 26. The memo stated:  “If you are not up to date on your BLS you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BLS class.”  Kowitz was one of several employees who had allowed their certification to lapse.

Shortly after the deadline passed, Kowitz sent a letter to the Human Resources Department and her supervisor stating that she would “not be able to do the physical part of BLS” until her doctor cleared her to do so. (She had taken and passed the written portion.)  She stated she had a doctor’s appointment on December 2 and would provide an update that day.  Kowitz concluded with:  “Thank you for understanding my condition.  It has been very stressful for me these past months.  I am trying my best but at the same time I want to protect the surgery I had on my neck.  I do go home after a[n] 8 hour shift and I have a lot of tightness in my neck and times when we are very busy, I have pain.”

Actions Can Speak Louder Than Words

On December 2, Kowitz’s doctor determined she needed at least four additional months of physical therapy before she would be able to complete the physical portion of the BLS exam. Kowitz left her supervisor a voicemail with this information.  The next day, the Hospital told Kowitz she was fired because she was unable to perform BLS.  Kowitz then sued for disability discrimination under the ADA.  After her claim was dismissed by the lower court on a motion for summary judgment, she appealed to the Eighth Circuit Court of Appeals, which hears cases from Minnesota.

The Appeals Court first ruled that while having having this certification was an essential function of the job, there was a critical fact dispute regarding (1) whether she could have performed this essential function with an accommodation and (2) whether the Hospital failed to reasonably accommodate her. Kowitz argued that she could have been accommodated by either allowing her additional time to complete the certification or reassigning her to a position that did not require BLS. The Hospital countered, however, that Kowitz never requested an accommodation so they had no obligation to engage in the interactive process to discuss these (or any) options.

The judges sided with Kowitz, explaining that since the Hospital was aware of the context of her FMLA leave, they also knew about her disability. Kowitz made clear in her letter and voicemail that she could not complete the BLS certification because of the disability.  Although she “did not ask for a reasonable accommodation of her condition in so many words,” the Court held that a fact-finder needs to determine whether “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.”  Since it was reasonable to believe that a jury might find that the Hospital violated the law when it simply terminated her without engaging in the interactive process, the lower court’s dismissal before a trial was improper.

Bottom Line

Possibly the worst fact for the employer in this case is that they simply fired the employee following her voicemail about the restriction, without even having a brief conversation with her to see if there was a solution to this problem. Even without this decision holding that this action potentially violated the law, many employers might have chosen to take a different path and at least have a conversation with the employee.

In general, this case reminds us that even without a specific request for an accommodation, there can be cases where an employer still has a legal obligation to engage in the interactive process to determine if accommodation under the ADA is needed.  If an employer is aware that an employee has a physical or mental impairment, and the employee has disclosed that this impairment is affecting something they need to do for their job, this may be viewed as an “implied” request for an accommodation.  This means (at a minimum) an employer may need to engage in good-faith discussions about whether there is a reasonable accommodation that would enable the employee to do his or her job.