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Dec 09, 2016

Requesting Accomodation: Kowitz v. Trinity Health

By: Allison Mann

In a recent opinion, Kowitz v. Trinity Health, 839 F.3d 742, the Eighth Circuit Court of Appeals revisited the prerequisites for a failure to accommodate claim under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act. The court used the same analysis for both laws.

Generally, there are two preliminary elements that a plaintiff employee in an accommodation case must show in order to proceed:

1) That the employer knew about the employee’s disability; and

2) That the employee requested an accommodation or assistance for that disability.
Once these are established, the employer has a duty to engage in an “interactive process” to determine whether a reasonable accommodation is possible.

In Kowitz, the second element was in question. In the past, the employee was required to clearly request an accommodation. However, the Kowitz court has made this showing much easier for plaintiffs in the Eighth Circuit.

The Facts:

In Kowitz, Plaintiff was a respiratory therapist at a hospital, the Defendant. She suffered from cervical spinal stenosis, which eventually required surgery. When she returned from surgery, she informed her supervisor that she would have physical work restrictions, including an inability to work her regular twelve hour shifts. Defendant accommodated this restriction by limiting her to eight hour shifts.

About a month after Plaintiff’s return from work, Defendant requested that all employees update their certifications to provide basic life support, including CPR. Plaintiff informed Defendant that she could not complete the re-certification until she had her doctor’s approval. Thereafter, her doctor determined that she would not be able to meet the test’s requirements for four months. She relayed this information to Defendant. Defendant terminated Plaintiff the next day for her inability to perform a necessary function of her job.

Plaintiff brought suit for failure to accommodate her disability. It was undisputed that Plaintiff never requested an accommodation for her inability to complete life support training.

Majority Opinion:

The majority first acknowledged that it is the employee’s responsibility to initiate the accommodation process by “making [the] employer aware of the need for an accommodation.” There are no “magic words” or “technical language” for making a request for an accommodation.

In the past, the court has evaluated whether a plaintiff “clearly” makes an accommodation request. In this case, however, the court evaluated whether the accommodation request could be implied from the information provided by a plaintiff.

The court ultimately held that Plaintiff provided enough evidence to raise the question of whether Plaintiff requested an accommodation (ultimately this will be a question for the jury). This evidence included the fact that Defendant knew about Plaintiff’s condition and that Plaintiff told Defendant that she could not complete her certification due to her condition.

In other words, the court held that Plaintiff’s mere notification of her disability was the request for accommodation.

Dissenting Opinion:

One judge did not agree with this analysis. The dissenter would have dismissed Plaintiff’s claim because she did not actually make a request for an accommodation. Judge Colloton agreed that there are no “magic words” to invoke an accommodation request, but would have imposed a clear request requirement. In sum, he thought that the majority confused the test, and needlessly eliminated one of the requirements for an accommodation claim.

The Takeaway:

The Kowitz opinion is a departure from the Eighth Circuit’s previous precedent, which required that the employee actually make a request for an accommodation. Now, a request may be implied from disability information provided by an employee. Arguably, any employer that knows an employee has a disability must determine whether a reasonable accommodation can be offered.

The following tips may help employers in this process:

    • Be proactive. If an employee notifies you of a disability that prevents them from performing a function of their job, assess whether a reasonable accommodation should be provided.
    • Document the reasonable accommodation process.
    • Evaluate whether a reasonable accommodation can be offered before terminating an employee on the basis of disability (i.e. terminating the employee because they cannot perform an essential function of their job).
As always, if there are any specific questions, competent legal counsel should be engaged.

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Reprinted with permission from an article submitted for publication in the December, 2016 Southwest Area Human Resource Association newsletter.