Usually, an employee bears responsibility for informing her employer that she requires a workplace accommodation. But sometimes, when an employer is aware that the worker needs assistance, it must accommodate even if the employee never asks for help.
|
A recent case from the 8th U.S. Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—illustrates just that: an employee exhausted her Family and Medical Leave Act (FMLA) allotment but still couldn’t perform all of her job duties. Instead of firing her, the employer should have considered accommodations for her, the court determined in Kowitz v. Trinity, No. 15-1584 (8th Cir. Oct. 17, 2016)).
Facts of the Case
“Regina”, who worked for Trinity Health as a respiratory therapist and lab technician, took time off to have surgery on her neck. When she exhausted her available FMLA leave, she returned to work with restrictions. The employer agreed to limit her hours and physical activity on a temporary basis.
A few weeks later, however, she was unable to renew her CPR certification. She successfully completed the written test but her doctor said she would need 4 more months of physical therapy before she would be able to perform the physical demonstration. Trinity fired her, citing her inability to perform basic life support.
Regina sued, alleging that Trinity fired her because of her disability, in violation of the Americans with Disabilities Act (ADA). Trinity could have reassigned her to another position until she could obtain CPR certification, she argued.
A district court, however, dismissed her claims. She was not qualified to perform the essential functions of her job and she never requested an accommodation, it found. Regina appealed.
Appeals Court Weighs In
On appeal, the 8th Circuit agreed that Regina wasn’t qualified for her positions. Her job descriptions required certification and, while employees rarely had to perform CPR, the consequences of not being able to do so were dire, the court said.
The question then, the court said, is whether Regina could have continued working with an accommodation and, if so, whether Trinity failed to reasonably accommodate her.
It is well-settled that employers must engage in the interactive process of looking for an accommodation when an employee requests help because of a disability. But the employee need not use special language, the court said. Instead, she merely needs to make her employer aware of the need.
Regina presented enough evidence from which a reasonable jury could determine that Trinity was on notice of her need for an accommodation. She notified her supervisor in writing that her disability prevented her from meeting one of her job requirements for the next 4 months. Instead of engaging in the ADA’s interactive process, it fired her without any discussion.
“Though Regina did not ask for a reasonable accommodation of her condition in so many words, … 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,” the court said, remanding the case.
Employer Takeaway
While the ADA and U.S. Equal Employment Opportunity Commission (EEOC) regulations generally require that an employee—or his or her representative—put the employer on notice of the need for accommodation, there are exceptions.
If an employer knew or should have known that an employee needed assistance because of a disability and failed to provide a reasonable accommodation, it still may be held liable for discrimination.
On the other hand, if an employer offers assistance and an employee declines, the employer’s obligation to accommodate generally ends there. Experts, however, often recommend that employers memorialize the offer and refusal in writing.
Also, while court documents only say that Regina requested reassignment, the EEOC and courts generally agree that leave can be a reasonable accommodation—especially an extension of FMLA leave.