The Duty to Accommodate: When is the Employer on Notice?
By Karen R. Glickstein
The number of charges filed with the US Equal Employment Opportunity Commission alleging disability discrimination has increased steadily over the past five years. In its recently updated Strategic Enforcement Plan, the EEOC announced that one of its key priorities will be pursuing claims of pay disparity among disabled workers. Employers must be prepared to respond appropriately when they learn that employees have medical restrictions which may affect the employees’ ability to perform an “essential function” of the job.
While most employers are generally aware of the duty to engage in the “interactive process” to determine if an accommodation is reasonable (or necessary), conventional wisdom provides (and the applicable regulations confirm) that an employer need only discuss possible accommodations when an employee affirmatively puts the employer on notice of the need for an accommodation. In Kowitz v. Trinity Health, a divided Eighth Circuit Court of Appeals (covering the states of Missouri, Iowa, Minnesota, North Dakota, South Dakota, Nebraska, and Arkansas) appears to have changed the standard, suggesting that the onus is on employers to discuss possible accommodations upon learning that an employee is returning to work with some type of restriction which may affect the individual’s ability to perform his or her job duties.
Kowitz worked as a Respiratory Therapist and later took on additional duties as a lead technician in the blood gas laboratory. Her employer, a medical facility, required all employees in the department where Kowitz worked to be certified in Basic Life Support (BLS) to respond to potential medical emergencies. Kowitz took FMLA leave for surgery related to spinal stenosis and, after her leave concluded, returned to work with some additional restrictions, which were accommodated. At about the same time as Kowitz returned to work, the medical facility realized that several employees in the department, including Kowitz, did not have current BLS certification. All employees were asked to recertify by a date certain. While Kowitz took, and passed, the written portion of the BLS test, her physical restrictions prevented her from taking the physical part of the test (which requires actual physical compressions to establish CPR skills) by the established deadline. After Kowitz sent a letter to her employer noting that she would not be able to take the test for at least four additional months due to her physical limitations from the surgery, she was terminated.
The trial court found that the employer had no duty to accommodate because Kowitzwas unable to perform the essential function of her job (completing the required BLS certification). The Eighth Circuit (in a 2-1 decision) reversed, holding that since the employer knew from the letter and the prior FMLA leave that Kowitz may need additional time to take the physical portion of the test, it had a duty to engage in the interactive process, even though Kowitz did not make a specific request for an accommodation (such as a longer time period to take the test). In light of the Court’s decision in this case, employers should consider the following steps to minimize liability for failure to accommodate claims:
Remind Managers and Supervisors of the need to involve human resources personnel when employees return from leave and have restrictions;
Insure that employees returning from FMLA or similar leave have a return to work release stating they have no restrictions or, in those cases where they have restrictions, engage in one-on-one discussions with the employee to determine if the restrictions can be accommodated;
Review job descriptions to verify that they accurately list the essential functions of a position so that, if the situation arises, there is no question as to which job functions are “essential” and which are not.