Most California employers seem to be cognizant of their legal responsibility to implement, if not vigorously consider, reasonable disability accommodations when an employee submits a related request. According to the EEOC, a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” So what happens in the instance where the employee never asks? The employer might be expected to be a mind-reader, per a recent appellate court decision out of the Eighth Circuit.
In the case at hand, an employee at a hospital took a leave of absence to undergo spinal surgery. Post-surgery, she returned to her job with certain lifting and work hours restrictions. In the meantime, the employee, along with the other hospital employees, needed to complete a CPR certification test. While she took and passed the written portion of the test, she notified her employer that she could not complete the physical portion until cleared by her doctor. A current CPR certification was a requirement of the employee’s position, and as a result of her failure to maintain her certification, the hospital terminated her employment.
The disgruntled employee sued the hospital under the Americans with Disabilities Act (ADA), claiming that it should have provided her with additional time to obtain the CPR certification, or transferred her to a position that did not require the certification. The employer pointed out that the now former employee had not requested any such accommodations at any point. Should the hospital have preemptively offered her a reasonable accommodation for her temporary disability?
According to the court, the answer is yes. The court noted that a jury could sensibly conclude that the employee had adequately “made her employer aware of the need for an accommodation” – even if she did not actually request one – when she informed her employer of her surgery and the limitations stemming from it. Further, the court noted that an employee is not required to “invoke the magic words ‘reasonable accommodation’” to prompt the employer’s duty to explore the need for a reasonable accommodation.
Not surprisingly, ADA issues present a number of ongoing challenges to employers. As this case highlights, employers should consider being proactive if and when it hears that an employee has or will have a condition that may affect his or her work performance.
For more information on how to judiciously navigate the ADA and related accommodation requests, contact experienced business attorney Drew E. Pomerance today.
