Express Accommodation Request Not Required Under ADA

By Jeffrey Rhodes Dec 1, 2016

​A medical technician who could not complete CPR training for four months after neck surgery can go to trial on her Americans with Disabilities Act (ADA) discrimination claim even though she never specifically requested an accommodation, the 8th U.S. Circuit Court of Appeals recently ruled.

In 2007, Trinity Health hired Roberta Kowitz as a respiratory therapist in its cardiopulmonary department. She later assumed duties as a lead technician in the blood gas laboratory and was supervised by Douglas Reinertson, who was supervised by Mark Waldera.

In 2010, Kowitz was diagnosed with cervical spinal stenosis, a degenerative disease of the spine. Kowitz requested leave under the Family and Medical Leave Act in July 2010 for corrective neck surgery. Kowitz's doctor approved her to return to work on Oct. 18, 2010.

When she returned to work, Kowitz provided Trinity with a return-to-work form, in which her doctor restricted her to eight-hour shifts and no lifting, carrying, pulling or pushing of more than 10 pounds until Nov. 29, 2010.

Kowitz also verbally informed Reinertson that she would be unable to work 12-hour shifts until approved to do so by her doctor.

Trinity assigned Kowitz to eight-hour shifts rather than 12-hour shifts, although Reinertson informed her that Trinity would not be able to accommodate the eight-hour shifts indefinitely.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

On Nov. 19, 2010, Reinertson posted a memorandum in the cardiopulmonary department's communication book directing employees to provide updated copies of their basic life support certifications by Nov. 26, 2010.

Basic life support (BLS) refers to CPR. To renew a basic life support certification, an individual was required to take a written examination and perform a physical demonstration of CPR.

The memorandum 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."

Several respiratory therapists, including Kowitz, did not have up-to-date basic life support certifications.

After Reinertson posted the memorandum, Kowitz took and passed the written examination. On Nov. 30, 2010, Kowitz submitted a letter to Reinertson informing him that she would be unable to take the physical portion of the examination until cleared to do so by her doctor. Kowitz copied Waldera on the letter, as well as Trinity's human resources department.

On Dec. 2, 2010, Kowitz's doctor determined that she would need to undergo at least four additional months of physical therapy before she would be able to complete the physical portion of the certification. Immediately after the appointment, Kowitz left Reinertson a voicemail message relaying her doctor's instructions.

On Dec. 3, 2010, Reinertson and Waldera informed Kowitz that her employment was terminated because she was unable to perform basic life support.

Kowitz brought suit against Trinity, Reinertson and Waldera under the ADA and the North Dakota Human Rights Act alleging, among other things, that she was unlawfully terminated on the basis of her disability.

The district court granted summary judgment in favor of the defendants, concluding that Kowitz was not qualified to perform the essential functions of the job because she was not certified to provide basic life support.

The district court additionally concluded that because Kowitz never requested a transfer to another position within Trinity, Trinity was under no obligation to reassign her to a position that did not require basic life support certification.

On appeal, the 8th Circuit agreed with Trinity that the basic life support certification was an essential function of Kowitz's job. The court then considered whether Kowitz could have performed this essential function with an accommodation and whether Trinity failed to reasonably accommodate her.

Recognizing that an employee with a disability is responsible for initiating the reasonable accommodation process by making his or her employer aware of the need for an accommodation, the court found that Kowitz had done so in her notice to Reinertson and Waldera.

Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, her notification implied that an accommodation would be necessary until she was cleared four months later.

Thus the court ruled that, because there was a genuine question as to whether Kowitz made a request for an accommodation sufficient to trigger Trinity's duty to engage in the interactive process of identifying a reasonable accommodation, it would reverse summary judgment and send the case back for trial.

Kowitz v. Trinity Health, 8th Cir., No. 15-1584 (Oct. 17, 2016).

Professional Pointer: While many courts still recognize the ADA's "predicate requirement" that an employee with a disability begin the reasonable accommodation process by asking for assistance, an employee can easily meet this requirement. An employer should engage in reasonable accommodation discussions once it learns of an employee's disability and of any job requirements that the employee has difficulty fulfilling because of his or her disability.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va. 

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