ADA: Another example of just how hard it is to comply with the law

disability, eeoc, ada

A new court ruling just made it a little more difficult for employers, managers and supervisors to comply with the ADA’s accommodation requirements. 
Meet Roberta Kowitz. She worked as a respiratory therapist for Trinity Health in North Dakota. Kowitz had spinal stenosis, a degenerative spine disease that can require corrective surgery. Kowitz eventually had corrective surgery on her neck in 2010, for which she requested FMLA leave. Her request was approved by Trinity.
Trinity also approved Kowitz’ extension of leave until November of that year without a hitch. But things hit a snag when she tried to return to work.

Physically unable to complete training

Upon her return, Trinity had Kowitz fill out-a-return to work form outlining what her limitations were and what her planned recovery was. Kowitz’ doctor had limited her work time to eight-hour shifts rather than her usual 12-hour shifts, which Trinity approved so long as the eight-hour schedule wasn’t indefinite.
Then, later in November, Trinity mandated that all of the respiratory therapists update their CPR training. Several of the therapists, including Kowitz, had their certifications lapse. But Kowitz notified her supervisor that she’d discuss with her doctor if she could perform the physical portion of the training.
Within a couple of days, Kowitz was examined by her doctor who recommended she have another four months of physical therapy before attempting the physical portion of the CPR exam. Kowitz turned in the written portion of the exam to Trinity that day, along with her doctor’s assessment. On the following day, Trinity notified Kowitz that she was being terminated for her inability to perform an essential function of her job.

Never used the word ‘accommodation’

Kowitz then filed a disability discrimination lawsuit against Trinity. She claimed Trinity violated her rights under the ADA by failing to provide her with an accommodation that would allow her to keep her job.
Trinity fought to get the lawsuit dismissed. It pointed out that Kowitz had never asked for an accommodation, and the CPR test was an essential part of her job. And if she couldn’t perform that function, then her termination was lawful, Trinity claimed.
The court disagreed with Trinity. It pointed out that Trinity was well aware that Kowitz was disabled, as it had already granted her leave time and an amended schedule accommodation. And based on that evidence, it said a jury could reasonably conclude that Kowitz had made an implicit request for an accommodation in regards to the CPR requirement. If that’s proven to be true, the court said Trinity was obligated under the ADA to enter the interactive process to determine if a reasonable accommodation could’ve been provided to allow Kowitz to perform the essential functions of her job.
Bottom line: The court said her lawsuit will proceed. Now a jury will hear the case, and Trinity is facing an expensive legal battle or settlement.

What it means for employers

This case is a tough pill for employers to swallow. It shows that employees don’t have to explicitly request an accommodation to trigger an employer’s need to enter the interactive process.
Instead, employers must be able to read between the lines to determine when their ADA obligations kick in.
This means it’s time to train managers, supervisors and other decision makers to spot when an employee’s performance issue — or inability to meet a job’s requirement — is the result of a disability. And, when that’s the case, they need to know that accommodation options must be explored before an adverse employment decision is taken against the employee.
Cite: Kowitz v. Trinity Health