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Must employee explicitly say ‘I need an accommodation?’

October 25th, 2016  |  Joy Waltemath

Your employee has taken FMLA leave for neck surgery. She’s come back to work but with physical restrictions, including lifting restrictions and the inability to work more than an eight-hour shift, which you have accommodated—although you let her know she can’t expect to work just eight-hour shifts indefinitely. After she’s been back about a month, her supervisor posts a memo requiring department employees to provide updated copies of their basic CPR certification by a certain date.

Employee can’t get CPR recertification. She is not the only employee whose CPR certification is out of date, and although she passes the written test for certification, she informs her supervisor, his supervisor, and the HR department that she can’t take the physical portion of the test until her doctor clears her. But she has a doctor’s appointment in a couple of days. Her letter also thanks you all for understanding her condition, says she still experiences pain, and says she wants to “protect the surgery” she had on her neck.

Not qualified. Immediately after her doctor’s appointment, the employee calls her supervisor to say that her doctor determined she needed at least four more months of physical therapy (!) before she can take the physical CPR certification. The next day, you fire her because she cannot perform CPR, which is an essential function of her position. She sues you, alleging among other claims that she was unlawfully fired based on her disability, but you win on summary judgment because the district court determines that the employee was not qualified to perform the essential functions of her job—she was unable to perform basic CPR, for one thing. Plus, because the employee never requested a short-term transfer to another position, the court found there was no obligation to reassign her.

“Implied” accommodation request? You’re good, right? Well, this month a divided Eighth Circuit ruled that even though an employee did not explicitly request a reasonable accommodation for the CPR recertification requirement that led to her firing, a jury could decide that her employer should have understood her communications were an accommodation request. In the case, the employer was aware of the employee’s chronic neck condition, her surgery, her ongoing pain, and the limitations she experienced because of it. She notified her employer that she could not become recertified until she had completed physical therapy, and she provided the timeframe for completion.

“Should have understood.” Although the appeals court agreed that there was no question that CPR certification was an essential function of the job, it said the issue was whether she could have performed that essential function with accommodation. The facts could lead a reasonable jury to find that the employee had made her employer aware she needed accommodation, even if she did not ask for one “in so many words.” These facts provided evidence from which a jury could conclude that the employer “should have understood—or did understand” the employee was actually asking for an accommodation when she wrote she couldn’t complete the physical portion of the CPR certification without additional physical therapy.

But wait—there was a dissenting opinion, which argued that the majority opinion collapsed two distinct elements of a disability discrimination claim, effectively eliminating the requirement that an employee clearly request accommodation. There are no magic words like “reasonable accommodation” necessary, but the employee’s notice must “make it clear to the employer that the employee wants assistance for his or her disability.” The dissent stressed that circuit precedent had never said that merely notifying an employer of a disability is an “implied request” sufficient to trigger an employer’s duty to engage in the interactive process.

Asking for accommodation is not an onerous burden on the employee—but asking employers to anticipate employee’s requests for reasonable accommodation could be.

The case is Kowitz v. Trinity Health, 8th Cir., October 17, 2016.

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