Thursday, November 3, 2016

Employers, do not ignore obvious disability accommodations

All the way back in 2014, I wrote the following:
An employee must ask for ADA accommodation to receive it.
That is, an employee must ask for an accommodation unless the employee’s need for an accommodation is so obvious that the employer cannot reasonably turn a blind eye toward it.

Case in point? Kowitz v. Trinity Health (8th Cir. 10/17/16).

Roberta Kowtiz worked for Trinity Health as a respiratory therapist and lead technician in its blood gas laboratory. She also suffered from cervical spinal stenosis, a degenerative spinal disease, for which she took a 12-week FMLA leave. She returned to work with restrictions that included max eight-hour shifts and no lifting more than 10 pounds. In the interim, Trinity updated the training requirements for Kowitz’s department to include renewed CPR training. Kowitz’s work limitations, however, prevented her from completing the training, a failure which resulted in her termination.

In her ensuing ADA lawsuit, the appellate court concluded that Kowitz’s failure to request a reasonable accommodation relative to the CPR training was not fatal to her ADA claim.
Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.
What is the key takeaway for employers? You cannot ignore what you know about an employee’s disability and the potential need for an accommodation. Instead of ignoring the employee, you must engage in the interactive process with that employee to determine the need for, and feasibility of, the accommodation, whether or not the employee actually requests it.