The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?

In contrast to Parker v. Crete Carrier Corporation, et al, in Kowitz v. Trinity Health, et al, No. 15-1584 (October 17, 2016), a split panel of the Eighth Circuit Court of Appeals reversed summary judgment for an employer on an Americans with Disabilities Act (ADA) claim, finding a factual dispute about whether the employer knew the employee needed an accommodation despite the absence of a formal request for accommodation.

Kowitz, a hospital technician, asked Trinity Health, a Catholic health system operating in North Dakota, to take leave to have neck surgery, which Trinity approved. Then Kowitz asked for more time to recover from the surgery before updating her cardiopulmonary resuscitation (CPR) certification. Trinity once again approved the request. Shortly after Kowitz returned to work with medical restrictions following surgery, the hospital notified employees that they had one month to provide updated copies of their CPR certifications, which required a written exam and a physical CPR demonstration. Kowitz, whose certification had lapsed, passed the written exam but told her supervisor that her doctor said she could not perform the physical demonstration for at least four months. The next day she was fired.

Kowitz sued Trinity in the United States District Court for the District of North Dakota in 2013, alleging they failed to accommodate her. Though the record showed that Kowitz did not explicitly ask for an accommodation, the Eighth Circuit found that “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.” Accordingly, the court found a disputed question of fact about whether the hospital should have known to accommodate Kowitz. The court also found it significant that the CPR certification seemed to be a “soft” requirement that had not previously been rigorously enforced, as opposed to a truly essential job function. 

As a result, the Eighth Circuit reversed summary judgment in the hospital’s favor. The court disagreed with the lower court’s finding that Kowitz was unable to perform an essential function of her job and that Trinity was not under an obligation to transfer her because she had not asked to be transferred to a job that did not require her to get the certification. “[I]n this case there was evidence from which a jury could find that Trinity should have understood—or did understand—Kowitz’s communications to be a request for an accommodation.”

In dissent, Circuit Judge Steven Colloton wrote that since Kowitz admitted she did not ask for accommodation, she should not be allowed to now claim the hospital failed to accommodate her. He admonished, “[t]he court conflates the employer’s knowledge of an employee’s disability with the requirement that an employee must make a clear request for accommodation.”

Key Takeaways

These two decisions demonstrate the risks and conflicting concerns employers face when it comes to managing employees’ medical issues under the ADA. On the one hand, employers must be aware when to offer accommodations, even if not expressly requested, to ensure compliance with the ADA. Gone are the days of requiring an employee to use the magic word “accommodation” to invoke the protections of the ADA—particularly if the employee’s condition prevents him or her from performing a non-essential, rather than essential, job function.

On the other hand, employers must also consider safety concerns and determine whether those concerns outweigh potential claims of disability discrimination. As the Eighth Circuit made clear in Parker, employers are in compliance with the ADA when a required medical examination is job-related and the employer has reason to doubt the employee’s capacity to perform his or her job duties. In addition, Parker is clear that a medical inquiry that is crafted to be tightly DOT-compliant will satisfy the ADA.

In sum, Eight Circuit employers, particularly those in fields where employees can harm the public or themselves, must be aware of the ADA’s myriad confusing requirements—which now include that an employee need not use the word “accommodation” in seeking one under the ADA.

Part one of this series discussed Parker v. Crete Carrier Corporation, et al, et al in which the Eighth Circuit ruled that a trucking company complied with the ADA in requiring drivers with body mass indexes (BMI) of 35 or above to undergo sleep studies.