Lack of ADA accommodation request may not matter

Charlotte Hodde, BridgeTower Media Newswires

Two recent appellate court decisions remind employers to be vigilant about employees who may not be asking for a disability accommodation, but who are nevertheless owed one by law.

An engineer for a gun manufacturer did not have a lot of physical work in his job; he mostly attended meetings and managed people. But his back pain from an old surgery returned and an MRI revealed spinal stenosis and nerve compression. His doctor prescribed pain medication, but did not require work restrictions because his job was sedentary.

However, due to understaffing, the engineer was asked to assemble the company’s manufacturing work stations. The work required unloading materials from a truck, sawing pipe, bending over and standing for long periods of time on the pavement. After complaining about being assigned manual labor, he was allowed to return to computer work for the rest of the day. Later that week he was fired for performance issues.

A medical technician went on leave for corrective neck surgery. She returned to work with a doctor’s note restricting the length of her shifts and how much she could lift, carry, push and pull over the following four-week period.
Before the four-week period was over, her employer required that she renew a basic life support certification, which consisted of a written evaluation and a physical demonstration of CPR. The technician passed the written evaluation, but her doctor prescribed four more months of physical therapy before she could complete the CPR demonstration. She was ultimately terminated because she could not perform basic life support.

The Americans with Disabilities Act requires that employers with 15 or more employees provide reasonable accommodations to employees with disabilities who need them to perform their jobs. A reasonable accommodation is generally a change in the work environment or to the customary practices and policies that enable an individual with a disability to perform his or her job or otherwise enjoy the same privileges and benefits of employment that are received by co-workers without disabilities.

In both cases, the trial court found that the plaintiffs had failed to request accommodations, consistent with prior ADA case law. In the past, courts have stated that the employee is responsible for initiating the interactive process to determine whether it is possible to accommodate a disability in the workplace. But both decisions were reversed on appeal because of evidence that the employees had implied their needs for accommodation.

The new standard

These decisions reaffirm the emerging standard that an employee may be entitled to an accommodation even without explicitly asking for one. The obligation to engage in the interactive process is shared between both the employee and the employer. The employee must provide relevant details of his disability and, if not obvious, the reason that he needs an accommodation to perform his job. The employer must then present ideas of reasonable accommodations.

Relevant information of a disability could include, among other things: a diagnosis, a treatment plan, apparent severe symptoms and physician-imposed work restrictions.

The gun engineer had told his HR manager about the results of his MRI. He also had told his manager that he felt like he was hurting his back by standing for long periods on the concrete and assembling the products. He said he was willing to continue building the work stations, but would need to “mix it up.”

The medical technician informed her employer in writing that she could not complete the CPR demonstration because of limitations prescribed by her doctor. She also told her supervisor she was still experiencing neck pain and thanked the supervisor for understanding. And the employer had known about her neck surgery because it approved leave for her recovery. The day before her termination, she left a voice mail for her supervisor with an update from her doctor’s appointment that same day of his recommendation that she continue physical therapy for four months before completing the CPR test.

How to initiate an interactive process

The shift reflects the spirit of the interactive process. It is intended to be an “information and flexible” conversation. An employer need not speculate or inquire about the severity of the employee’s disability. But if the employer has relevant knowledge of the disability, the employee’s limitations and potential accommodations must be discussed.

Reasonable accommodations can include modifying existing leave policies and providing medical leave for disabled employees even when other employees would not have additional leave available, or when that employee has exhausted all leave afforded under the company’s policies. The U.S. Equal Employment Opportunity Commission maintains that anytime an employee requests leave for a medical condition, even without a request for an ADA accommodation, the employer must treat the request as an accommodation request.

The bottom line is that employers need to be attentive. Do not miss the signs that an ADA obligation has been triggered. If an employee requests leave for a medical condition, notifies his or her employer of a medical procedure or test results, or presents a doctor’s note prescribing restrictions at work, it is time to talk to the employee and consider potential accommodations. An employer should start the interactive process as soon as it has knowledge of the medical condition.

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Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues and counsels higher education institutions on Title IX and FERPA issues. Contact her at 503-276-2102 or chodde@barran.com.