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Divided Eighth Circuit Lowers the Notice Requirement for Plaintiff Seeking a Reasonable Accommodation
Practical Law Legal Update w-004-0348 (Approx. 4 pages)
Divided Eighth Circuit Lowers the Notice Requirement for Plaintiff Seeking a Reasonable Accommodation
by Practical Law Labor & Employment
| Published on 25 Oct 2016 • USA (National/Federal) |
In Kowitz v. Trinity Health, the US Court of Appeals for the Eighth Circuit held that even if an employee fails to explicitly request a reasonable accommodation, a jury may conclude that an employer should understand an employee's implied reasonable accommodation request under the Americans with Disabilities Act (ADA).
On October 17, 2016, in Kowitz v. Trinity Health, the US Court of Appeals for the Eighth Circuit reversed a district court's grant of summary judgment for an employer, holding that despite an employee's failure to explicitly request a reasonable accommodation for her job requirements, a jury could conclude that her employer should have understood the employee's communication about her injuries and inability to perform certain tasks for a period of time to be a reasonable accommodation request under the ADA ( (8th Cir. Oct. 17, 2016)).
Background
Kowitz, a Trinity Health employee, suffered from cervical spinal stenosis. In July 2010, she requested FMLA leave to have neck surgery. Her doctor determined that she could return to work on October 19, 2010, exhausting her FMLA leave. When she returned to work, the doctor outlined physical restrictions that she should follow until November 29, 2010. Kowitz informed her superior of the assigned restrictions. On November 19, 2010, Trinity notified cardiopulmonary department employees, including Kowitz, that they would be required to update their life support certifications. To comply, Kowitz passed a written exam, but requested to delay a required physical demonstration until she received clearance from her doctor (after four more months of physical therapy). Her superior informed her that her employment was terminated due to her inability to perform the basic life support task.
Kowitz sued Trinity and her superiors alleging that she was terminated on the basis of her disability. The district court granted summary judgment to the defendants, concluding that since Kowitz was not certified to provide basic life support, she was unqualified to perform the essential functions of her position.
Outcome
The Eighth Circuit reversed the district court's grant of summary judgment to the defendants and held that there remained a genuine issue of material fact as to whether Kowitz's communication, which lacked a specific reasonable accommodation request, was sufficient to allow Trinity to identify a request by Kowitz for a reasonable accommodation for leave.
The Eighth Circuit noted that:
- Essential functions are "the fundamental duties of the job, but not its marginal functions" (Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012)).
- When a disabled employee requests an accommodation, the employer must engage in an interactive process to determine whether the accommodation is possible (E.E.O.C. v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 795 (8th Cir. 2007)).
- The employee must make the employer aware of the need for an accommodation by providing:
- relevant details of the disability; and
- the reason for an accommodation, if not obvious.
- Its previous holdings that an employee must clearly request a reasonable accommodation were distinguishable because the alleged accommodation requests in those cases were ambiguous (see E.E.O.C. v. Prod.Fabricators, Inc., 763 F.3d 963, 968 (8th Cir. 2014); Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir. 2002); Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1216 (8th Cir. 1999)).
The Eighth Circuit found that:
- There was no issue of material fact concerning the life support certification being an essential function of Kowitz's job.
- Despite the fact that she did not request a reasonable accommodation "in so many words," Kowitz presented the following evidence sufficient to raise an issue of fact as to whether she requested an accommodation:
- Trinity was aware of Kowitz's disability because she had taken FMLA leave and provided information in her Return to Work Form;
- her notification to her superior that she could not complete the physical certification exam until she was cleared by her doctor implied that she needed a reasonable accommodation until then; and
- she kept her superior informed concerning her medical appointments and her ongoing neck pain.
- Given this notification to her supervisor, Kowitz was not required to invoke the "magic words" of reasonable accommodation to transform a notification to a reasonable accommodation request (see Ballard, 284 F.3d at 962 (8th Cir. 2002)).
The dissenting opinion argued that:
- The majority erroneously eliminated the significant requirement that an employee clearly request a reasonable accommodation before an employer is required to enter the interactive process.
- Kowitz never requested a reasonable accommodation, so her statements were insufficient to trigger the interactive process.
- Employers and employees are entitled to clarity in the law to make proper decisions and avoid litigation.
Practical Implications
In Kowitz, the Eighth Circuit cleared potential hurdles for employees to prevail in reasonable accommodation claims by essentially eliminating the requirement that employees must specifically request a reasonable accommodation in order to receive one. The dissent noted that the majority conflated an employer's knowledge of an employee's disability with the requirement that an employee must clearly request an accommodation. The ambiguity created by the majority decision could potentially lead to an increase in litigation concerning whether an employee has made a request for a reasonable accommodation under the ADA.