Allison J. Hartnett

Allison J. Hartnett Associate

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Training Managers for Implied Requests for Accommodation under the ADA

Due to a recent decision in the 8th Circuit Court of Appeals, it is critical that companies train their managers in looking out for employees that may be in need of a job accommodation when they are dealing with a medical issue that hinders their job performance. Not all employees clearly request such an accommodation; however, the company could face liability for failing to provide it.

The Americans with Disabilities Act (ADA) requires that when an employee requests an accommodation for his/her disability, the employer engage in an interactive process with the employee to determine what, if any, accommodation should be provided to the employee. While it is the responsibility of the employee to initiate the accommodation process by providing details of the disability and the reason why an accommodation is necessary, the employer must respond by identifying and proposing potential options for the accommodation. The intent behind this process always has been to make the interaction informal and flexible; however, the Court’s decision in Kowitz v. Trinity Health Care, Case No. 15-1584 (Oct. 17, 2016), holds an employee merely may imply that an accommodation has been requested.

The Court in Kowitz held an employee only is required to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation. An employee is not required to use the magical words of “reasonable accommodation.” In this case, the employee, a respiratory therapist, had returned to work following a neck surgery. Due to her surgery and need for continued physical therapy, she was unable to complete the physical component of required CPR certification training. The parties disputed whether Kowitz had provided evidence that she requested an accommodation for her inability to perform CPR. The Court concluded Kowitz had requested the accommodation when she told her manager that she was unable to obtain the CPR certification until she had completed her four months of physical therapy. In other words, the Court held it was implied she would need an accommodation until she completed her physical therapy.

This decision is important as the manager/supervisor typically has the most interaction with an employee and, therefore, as an agent of the employer, will be the one most responsible for causing non-compliance with the ADA. Thus, employers should take action to educate their managers and supervisors on the reasonable accommodation process and whether an employee has sought a job accommodation under the ADA. Such training should include the instruction to seek counsel in their decision-making should a question arise as to whether a request for accommodation has been made. Such training on the reasonable accommodation process can save the company from many headaches down the line.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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