Finding the “Implicit” Accommodation Request under the Americans with Disabilities Act
It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options. But what happens when an employee merely identifies a disability but never asks to be accommodated? In a recent decision, a sharply divided Eighth Circuit held that an employer who learns an employee cannot perform essential duties without accommodation due to a medical condition may need to treat the information as an “implicit” accommodation request. Such an implicit request can trigger the interactive process even though the employee never specifically asked to be accommodated.
Roberta Kowitz was employed as a respiratory therapist at a North Dakota healthcare provider. In July 2010, she had neck surgery and took three months of FMLA leave. She returned to work with restrictions, which the employer accommodated. In November 2010, all respiratory therapists were directed to ensure they had a valid basic life support certification. Kowitz, who lacked the certification, informed her supervisor that her physician would not allow her to take the physical portion of the certification exam for four more months due to continuing pain. As basic life support was an essential function of Kowitz’s position, the employer concluded Kowitz was not qualified and terminated her.
Kowitz sued. The district court granted summary judgment for the employer, finding that Kowitz was not qualified to perform her essential duties. And since Kowitz had never expressly asked for a transfer as an accommodation, the court held the employer was under no obligation to reassign her to a job not requiring basic life support certification.
The Eighth Circuit reversed. It held that a jury could reasonably conclude Kowitz had made an implicit request for accommodation: the employer was aware of Kowitz’s surgery and prior leave, knew she claimed to have ongoing pain and was told her doctor would not allow her to take the certification test. In the appellate court’s opinion, these facts were sufficient for a jury to find that the employer knew Kowitz was seeking accommodation and should have engaged in the interactive process.
In sharp disagreement, the dissenting judge stressed that merely notifying an employer of a disability has never been synonymous with making a request for accommodation. In the dissent’s view, the Kowitz opinion eliminates the ADA’s requirement that an employee make it clear an accommodation is sought in the first place. Whether other courts will apply the Eighth Circuit’s “implicit request” standard as broadly as all that is questionable. The court’s opinion rests on specific facts, and different circumstances may lead to different outcomes.
But in the meantime, it pays to be proactive. Employers should train decision makers to listen carefully to what employees are telling them about their medical conditions and limitations. If the circumstances suggest an accommodation may be appropriate, consider asking the employee whether assistance is desired, even if a request was not expressly made. Remember, “magic words” are not required.