A divided federal appeals court recently reminded employers that an employee’s request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”) need not be explicit in order to invoke the interactive accommodation process. In Kowitz v. Trinity Health, the Eighth Circuit Court of Appeals found that, based on the circumstances presented in the case, an employee had made an implied request for a reasonable accommodation.
The employee, Roberta Kowitz, worked as a respiratory therapist and suffered from spinal stenosis, a degenerative disease of the spine. Following corrective neck surgery, Ms. Kowitz returned to work after exhausting her medical leave under the Family and Medical Leave Act. At that time, Ms. Kowitz presented her employer with a “return to work” form in which her doctor outlined a number of physical restrictions. The employer provided accommodations with respect to each of these restrictions.
One month later, the employer directed its respiratory therapists, including Ms. Kowitz, to provide updated copies of their basic life support certifications, which consisted of a written examination and a physical demonstration of CPR. While Ms. Kowitz passed the written exam, she submitted a letter informing her employer that she would not be able to complete the physical CPR demonstration until cleared to do so by her doctor. After meeting with her doctor, Ms. Kowitz immediately informed her employer that she would need to complete an additional four months of physical therapy before completing the physical portion of the exam. The employer terminated Ms. Kowitz the following day on the basis that Ms. Kowitz was unable to perform basic life support, which was an essential function of her position.
It is well-established that there are no “magic words” that an employee must use in order to request a reasonable accommodation and begin the interactive process with his or her employer. Instead, an employee is simply required to “mak[e] her employer aware of the need for an accommodation.”
In this case, the majority found that, although Ms. Kowitz did not ask for a reasonable accommodation of her condition, her notification to her employer that she would not be able to obtain the required CPR certification until she had completed physical therapy “implied that an accommodation would be required until then.” The court found that, because the employer was aware of Ms. Kowitz’s specific condition and her work restrictions, and because she referred to her surgery, her prior leave and her ongoing pain in her communications with her employer, there was enough evidence demonstrating that the employer “should have understood—or did understand” that these communications constituted a request for an accommodation. The dissenting judge disagreed, finding that the majority wrongfully conflated “the employer’s knowledge of an employee’s disability with the requirement that an employee must make a clear request for accommodation.”
For now, the majority’s decision serves as a reminder to employers that their employees are not required to make an explicit request for an accommodation in order to begin the interactive process, and that, under certain circumstances, an accommodation request actually may be implied. As a result, if an employer is unclear as to whether an employee has requested a reasonable accommodation, the employer should follow-up with the employee to clarify if the employee is requesting some form of assistance due to his or her disability. If so, the employer must then engage in the interactive process to provide the employee with a reasonable accommodation.