Along with prohibiting discrimination, the ADA requires employers to make reasonable accommodations to qualified applicants or employees known to have a disability. A reasonable accommodation is simply an adjustment or modification an employer provides to enable individuals with disabilities to have equal employment opportunities. Of course, accommodations vary depending on what each individual needs, and not all individuals with disabilities will need the same accommodations.
Requesting an accommodation is required
Also, the employer only has to provide an accommodation if the individual with a disability requests one. Once a reasonable accommodation has been requested, the employer and employee will discuss what is needed and try to identify an appropriate reasonable accommodation. If there are several options, the employer is able to choose the option that is less costly or easier to provide. But, what is required to actually request an accommodation? Is there special language that must be used to do so legally?
An implicit accommodation request
In a recent Eighth Circuit decision, the federal court held that an employer who discovers that an employee cannot perform essential duties without accommodation due to a medical condition may be required to consider that information as an "implicit" accommodation request. An implicit request for a reasonable accommodation will trigger the interactive process even when the employee did not specifically ask to be accommodated.
Respiratory therapist terminated due to medical condition
The Eighth Circuit case involved Roberta Kowitz, a respiratory therapist in North Dakota who had neck surgery and took three months of FMLA leave. When she returned to work, she had some physical restrictions, which her employer accommodated. However, in November 2010, all respiratory therapists were required to show they had valid basic life support certification. Kowitz, did not have current certification and would not be allowed by her physician to take the physical portion of the certification exam for another four months due to continuing neck pain. Kowitz's employer determined she was no longer qualified for the position because basic life support was an essential function of her job, and she was fired.
The case was initially dismissed in favor of the employer
When Kowitz sued her employer for disability discrimination, for refusing to accommodate her, the case was initially dismissed by the district court. That court found that Kowitz was not qualified to perform her essential job duties. The court also found that Kowitz never expressly requested an accommodation, so her employer was under no obligation to provide one.
The Eighth Circuit disagreed
On appeal, the Eighth Circuit held that the jury could have determined Kowitz made an implicit request for accommodation. It based this finding on the fact that the employer was aware of Kowitz's surgery and disability leave, knew she reported having ongoing pain, and was told that her doctor restricted her from taking the certification test. Those facts were sufficient for a jury to find that the employer knew Kowitz was seeking accommodation and should have engaged in the interactive process of determining what type of accommodation could be provided.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.