As you are aware, I missed a blog entry last week. I do have an explanation. At the beginning of the week, I was faced with a deadline for getting a complaint out. No, I don’t usually draft one myself, but this was an extraordinary situation. At the end of the week I had a business meeting in Washington D.C., where I am part of a Health and Human Services committee designed to bridge the gap between law and public health epidemiology. It is fascinating work. Before moving on to the blog entry of the day, I am a native Chicagoan and so I would be remiss if I did not point out that CUBS ARE IN THE WORLD SERIES!!!!!!!! for the first time since 1945. They are playing Cleveland, which has not won a World Series since 1948 (Cubs last World Series win was 1908). The first game is tonight! Now that I live in Decatur, Georgia, it is interesting to note that the last time Cleveland was in the World Series, they actually lost to the Atlanta Braves, in 1995, which is the only World Series the Atlanta Braves have won.

In other news, feedspot.com has recently included my blog as one of the top 100 legal blogs to read, which can be found here. Also, the Expert Institute has included my blog as one of the top legal blogs in the expert witness category. They are currently having a contest and the leading vote getters in each of the categories get a prize. So, if you don’t mind voting for this blog, that would be appreciated. Voting can be done here:

Today’s blog entry focuses on a case that makes it obvious that when it comes to dealing with reasonable accommodations, preventive law is everything. The case is Kowitz v. Trinity Health, an Eighth Circuit decision that came down October 17, 2016. As is usual, the blog entry is divided into categories: facts; whether life support certification was an essential function of the job; whether a reasonable accommodation request was made; reasoning of dissent; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts:

Plaintiff had cervical spinal stenosis, a degenerative disease of the spine. She began working for Trinity Health in 2007 as a respiratory therapist in the cardiopulmonary department, and later she assumed additional duties as a lead technician in the blood laboratory. On July 21, 2010, she requested leave under the FMLA to have corrective neck surgery. Trinity Health approved that request to take leave from July 27, 2010 through September. On September 7, 2010, plaintiff’s doctor made the determination that she could not return to work until October 18, of 2010. Plaintiff then requested an extension of her leave time until October, which request was granted. After that extension, plaintiff had used all of the leave time available to her under the FMLA. When she did return to work, plaintiff provided Trinity with the return to work form in which her doctor stated that she should be restricted in the following ways: working eight hour shifts; and lifting, carrying, pulling, pushing no more than 10 pounds, among other restrictions. Trinity did assign the plaintiff the eight hour shifts, but also informed her that they would not be able to accommodate the eight hour shifts indefinitely. On November 19, 2010, her supervisor posted a memorandum directing department employees to provide updated copies of the basic life support certification by November 25, 2010. It turns out that several respiratory therapist, including the plaintiff, did not have up-to-date basic life support certifications. To be certified, a person has to take a written test as well as perform a physical demonstration. Subsequently, the plaintiff took and passed the written examination. However, on November 30, 2010, plaintiff submitted a letter to her supervisor informing him that she was unable to take the physical portion of the examination until cleared to do so by her doctor. She copied in others on the letter, including the human resources department. That particular letter stated:

This is to inform you that I will not be able to do the physical part of BLS until I have clearance from Dr[.] Transfeldt. I have an appointment with him on December 2. I will inform you via fax hopefully that day.

Thank you for understanding my condition. It has been very stressful for me these past months. I am trying my best but at the same time I want to protect the surgery I had on my neck. I do go home after a[n] 8 hour shift and I have a lot of tightness in my neck and times when we are very busy, I have pain.

On December 2, 2010, plaintiff’s doctor determined that she would need to complete at least four additional months of physical therapy before she would be able to complete the physical portion of the basic life support certification. Immediately after the appointment, plaintiff left a voicemail message with her supervisor relaying her doctor’s instructions. December 3, 2010, her supervisor informed her that her employment was terminated because she was unable to perform basic life support. The District Court granted summary judgment for the employer and the plaintiff appealed. The Eighth Circuit decision was a majority decision with Judges Riley and Kelly in the majority and Chief Judge Colloton dissenting.

 

II

Court’s Reasoning with Respect to Whether Life Support Certification Was an Essential Function of the Job

 

1. To determine whether a job function is essential, several factors are considered: the function the employer thinks are essential; written job description; how much time an employee spends on the job performing the function; the consequences of not having the employee perform the function; and whether other current employees in similar jobs perform the function.
2. The job description for plaintiff’s position as lead technician in the blood gas laboratory states that basic life support certification is required. The employer also submitted other versions of the job description stating that basic life support certification was required or would be required within 30 days of hiring. Furthermore, both of her supervisors testified that certification was necessary for respiratory therapists to ensure the safety of the critically ill patients. Finally, one of her supervisor testified that regardless of how frequently it was required, respiratory therapists were expected to perform basic life support independently when necessary to save a patient’s life.
3. Once the memorandum went up saying that life support certification was necessary, every respiratory therapist except for the plaintiff obtained an updated certification by the deadline posted in the memorandum.

III

Was a reasonable accommodation request made?

 

1. When an employee with a disability requests an accommodation for a disability, the employer must engage in the interactive process to determine whether a reasonable accommodation is possible.
2. The employee has the responsibility for initiating the process by making the employer aware of the need for an accommodation. That means providing relevant details of her disability and, if not obvious, the reason the disability requires an accommodation so as to allow the employer to identify and propose potential options.
3. The employee need not use technical language to make the request or suggest what accommodation might be appropriate.
4. Upon being told that her basic life support certification was due, plaintiff notified her supervisor in writing that she was unable to complete the physical component of the certification until she had been cleared to do so by her doctor.
5. When the plaintiff notified her supervisor that she was unable to complete the physical component of the certification, the employer was already aware of her disability based upon her prior FMLA leave for neck surgery and the information she provided in her return to work form. In that notification, the plaintiff notified her supervisor that she had an appointment scheduled with her doctor in a few days and would inform her supervisors of the result of her appointment that day. She also indicated she was still experiencing neck pain, and thanked her supervisor for understanding her condition. After the doctor’s appointment, plaintiff called her supervisor and left a voicemail notifying him that she required four months of physical therapy before she would be able to complete the life support certification. The next day, plaintiff was terminated with no further discussion.
6. While plaintiff did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to the plaintiff, facts exist as to why the letter to her supervisor stating that she would not be able to obtain the required certification until she had completed physical therapy implied (emphasis added), that an accommodation would be required until then.
7. While the Eighth Circuit has held that a duty to accommodate an employee is not triggered until the employee clearly requests an accommodation, those cases involved significantly more ambiguous requests than this one.
8. Several reasons exists as to why a jury could reasonably find that the employer should have understood or did understand that plaintiff’s communications to them were a request for a reasonable accommodation. More specifically: 1) plaintiff referred to her surgery, prior FMLA leave, and ongoing pain in a written notification stating that she would be unable to complete the life support certification without medical clearance; 2)her return to work form, completed less than two months before her termination, stated that she could not lift, carry, pull, or push more than 10 pounds; and 3) while that return to work form did not explicitly say that plaintiff could not complete the physical component of basic life support certification, there is nothing in the record to show that she knew at the time the form was completed, that she would be required to recertify by a date certain and before she was physically able to complete that certification. In fact, the evidence suggested that the certification requirement had not been rigorously enforced in the past and that an updated certification for employees was requested only after realizing that several therapists had expired certification.
9. An employee is required only to provide the employer with enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation. Whether that standard is met means considering the employer’s knowledge of the disability and the employee’s prior communications about the disability. It is not limited to the precise words spoken by the employee at the time of the request. When the plaintiff advised her supervisor that she would be unable to complete the physical requirements of her basic life support certification until she had done four additional months of physical therapy, she was not required to formally invoke the magic words “reasonable accommodation,” in order to transform that notification into a request for a reasonable accommodation. In short, her written notification that she would be unable to complete the basic life support certification without medical clearance and her statement that she required four months of physical therapy before completing the certification, could readily have been understood to constitute a request for reasonable accommodation of her disability.

 

III

Reasoning of Dissent

 

1. The majority opinion eliminates the requirement that an employee seeking a reasonable accommodation from her employer must clearly request the accommodation before the employer has an obligation to engage in the interactive process.
2. In a reasonable accommodation case, an employee has to prove both that the employer knew about her disability and that she requested an accommodation or assistance for her disability. A request for an accommodation is a prerequisite for initiating the interactive process.
3. While there is no requirement to use magic words like “reasonable accommodation,” the employee’s notice still must make it clear to the employer that the employee wants assistance for his or her disability.
4. Plaintiff never requested an accommodation for her inability to perform basic life support. Rather, she merely informed her supervisor that she was unable to obtain a basic life support certification until she had completed four months of physical therapy.
5. As the District Court stated, plaintiff never made a request or even mentioned to her supervisor, her employer, or the HR department that she was interested in transferring to a vacant position, and she never applied for any position with the employer despite knowing job vacancies were posted on the employer’s website, which plaintiff was familiar with and had access to.
6. The majority opinion confuses the employer’s knowledge of an employee’s disability with the requirement that an employee must make a clear request for accommodation.
7. Until this case, the Eighth Circuit had never held that implied requests are sufficient to trigger an employer’s duty to engage in the interactive process. In fact, the court had previously said the opposite. That is, the court has said that an employee seeking a reasonable accommodation cannot expect the employer to read her mind and to know she secretly wants a particular accommodation and then sue the employer for not providing it.
8. It is not the place of the court, to impose a rule based upon how a well-meaning employer would treat an employee who notifies the employer of a disability, even if some employers might well take it upon themselves to initiate an interactive process without a request from the employee.
9. By eliminating the requirement of a clear request for accommodation be distinct from the notice of disability, the court generates unfortunate uncertainty.

IV

Takeaways:

1. Preventive law is everything in the Eighth Circuit when it comes to handling accommodation requests. Now that a reasonable accommodation request can be implied, an employer in the Eighth Circuit should initiate the interactive process if it can be reasonably assumed the accommodation request logically follows from the information that has been provided by the employee. In other Circuits, an employer may not have to go this far. Even so, as a matter of preventive law, an employer may want to consider this approach if it is possible.
2. If Justice Scalia was on the court, there is no doubt in my mind, that the dissenting opinion would prevail at the United States Supreme Court. Without Scalia, a 4-4 split would be quite conceivable. Hard to say what a new Justice (Justice Garland?), would do.
3. The concept of an implied reasonable accommodation request is something new, and so it will be interesting to see if other Circuits follow suit.
4. On the plaintiff side, the implied accommodation request concept creates a benefit of the doubt for the plaintiff. However, I would hate to rely on this. A plaintiff is going to be much better off being explicit when asking for reasonable accommodations in order to avoid having to deal with the dissent’s reasoning.
5. One wonders if a rehearing en banc won’t be requested in light of the implied reasonable accommodation theory posed by the majority being such a novel idea.
6. The line between an employer knowing or should have known that a request for an accommodation was made when compared with an implied reasonable accommodation request arguably still exists and is an important distinction, especially where an employer wants to take a stand on not having to accommodate implied requests for accommodations.
7. A function of the job can still be essential even if it is performed only rarely.