Help Me, Help You: Eighth Circuit Diminishes Notice Requirement for Employees Seeking an ADA Accommodation.

• Author: Kim, Rachel S.
• Position: NOTE

Kowitz v. Trinity Health, 839 F.3d 742 (8th Cir. 2016)

1. INTRODUCTION

   The purpose of Title I of the American with Disabilities Act ("ADA") is to remove barriers individuals with disabilities face in the workplace. (1) In addition to prohibiting employers from discriminating against individuals with disabilities, the ADA also mandates an affirmative duty on employers to provide reasonable accommodations to disabled employees who need assistance in performing their jobs. (2) Employers and employees share the responsibility of identifying an accommodation; they should work together through what is called an "interactive process" to find an accommodation that assists the employee in successfully performing his or her job and does not place an undue burden on the employer. (3)

   The ADA statute, (4) legislative history, (5) Equal Employment Opportunity Commission ("EEOC") guidance, (6) and Eighth Circuit precedent (7) indicate that an employee seeking an accommodation must first request his or her need for an accommodation before the employer's duty to engage in the interactive process is triggered. The Eighth Circuit, however, has not consistently held a uniform rule regarding what information an employer must have before it is obligated to engage in the interactive process. (8) In some cases, the Eighth Circuit has strictly required employees to clearly request an accommodation before any duty of the employer is triggered. (9) In other cases, the Eighth Circuit has held as long as the employee provided enough information, combined with what the employer already knew about the employee's limitations, the employer is sufficiently put on notice for the need for an accommodation. (10) The Eighth Circuit took the latter approach in Kowitz v. Trinity Health. (11)

   This Note argues that the Eighth Circuit's holding creates uncertainty for both employers and employees. When deciding whether an employer has failed to engage in the interactive process, the Eighth Circuit should look to whether the employee clearly requested a need for an accommodation, rather than examining the totality of knowledge the employer had on hand. Requiring employees to clearly request an accommodation puts employers on notice and thus helps employers better help employees with disabilities. Part II of this Note provides the facts and holding of Kowitz. Part III examines the legal background surrounding Kowitz. Part IV reviews the instant decision of the court. Part V explains why employees should be required to clearly request a desire for an accommodation, as well as provides guidance for employers moving forward. Part VI concludes this Note.

2. FACTS AND HOLDING

   In March of 2007, Roberta Kowitz began employment at Trinity Health. (12) Trinity Health is a non-profit, integrated healthcare system that provides a variety of healthcare services to people in North Dakota and surrounding areas. (13) Kowitz was initially hired as a respiratory therapist in the cardiopulmonary department but later assumed duties as a lead technician in the blood gas laboratory. (14) Her direct supervisor was Douglas Reinertson, and Reinertson's direct supervisor was Mark Waldera. (15)

   Kowitz suffered from cervical spinal stenosis, a degenerative disease of the spine. (16) This spinal disease required her to have corrective neck surgery. (17)

   Kowitz requested leave under the Family and Medical Leave Act (18) ("FMLA") from July 27, 2010, through September 10, 2010. (19) Trinity Health granted her request. (20) On September 7, 2010, Kowitz's physician recommended she not return to work until October 18, 2010. (21) Kowitz thus requested an extension of leave through October 19, 2010. (22) Trinity granted the extension. (23) With the extension, Kowitz had exhausted the remainder of her FMLA leave. (24)

   When Kowitz returned to work, she provided Trinity with a Return to Work Form, outlining her physical limitations. (25) In addition, she told Reinert-son that she would be unable to work full twelve-hour shifts until approved to do so by her physician. (26) Reinertson assigned Kowitz to work eight-hour shifts instead but told her that Trinity would not be able to reduce her shifts indefinitely. (27)

   On November 19, 2010, Trinity Health announced that all cardiopulmonary department employees were required to provide updated copies of their basic life support ("BLS") certifications by November 26, 2010. (28) A BLS certification renewal "required taking a written examination and performing a physical demonstration of CPR." (29) On November 30, 2010, Kowitz informed Reinertson that she would be unable to perform a physical demonstration of CPR until cleared to do so by her physician. (30)

   On December 2, 2010, Kowitz called Reinertson to inform him that her physician instructed she complete, at minimum, four months of physical therapy before she could complete the physical portion of the BLS examination. (31) The next day, Kowitz was terminated for not being able to perform BLS. (32)

   Kowitz subsequently brought suit against Trinity Health, Reinertson, and Waldera under the ADA (33) and the North Dakota Human Rights Act (34) ("NDHRA"), alleging that they discriminated against her when they terminated her employment and failed to accommodate her disability. (35)

   Kowitz asserted that Trinity failed to accommodate her because Trinity should have allowed her additional time to complete her BLS certification or reassigned her to another position that did not require the certification.

   (36) Trinity argued that "Kowitz was not a qualified individual under the ADA, because performing BLS was an essential function of both of her positions." (37) Furthermore, Trinity contended that Kowitz never requested an accommodation. (38)

   The district court agreed with Trinity and granted summary judgment, holding that Kowitz was not qualified to perform the essential functions of either of her positions. (39) In addition, the district court concluded that because Kowitz produced no evidence that she ever requested an accommodation for her inability to perform BLS, Trinity was under no obligation to allow her additional time to complete her BLS certification or to reassign her to another position that did not require the certification. (40) Kowitz appealed to the Eighth

   Circuit. (41)

   The Eighth Circuit reversed the district court's grant of summary judgment and held that: (1) BLS certification was an essential function of Kowitz's positions and (2) a genuine issue of material fact existed as to whether Kowitz requested an accommodation. (42) The court noted that although Kowitz did not explicitly request an accommodation, she did notify her supervisors that she would not be able to obtain certification until completing physical therapy and Trinity was aware of her disability and her general limitations. (43) The Eighth Circuit concluded that where an employee provides enough information that under the circumstances the employer can fairly be said to know of the disability and desire for an accommodation, a genuine issue of material fact exists as to whether that employee requested an accommodation sufficient to trigger the employer's duty to engage in the interactive process of identifying a reasonable accommodation. (44)

3. LEGAL BACKGROUND

   The ADA is "among the most wide-ranging civil rights statutes that were passed in the 20th century." (45) Not only does the ADA prohibit discrimination based on disability, but it mandates affirmative duties for employers to make necessary changes in operations so that disabled individuals enjoy the same rights as others. (46) Kowitz v. Trinity Health deals with this unique concept of the ADA. To gain a better understanding of the legal background of Kowitz, Section A of this Part provides an overview of the ADA and the reasonable accommodation requirement, Section B explores the legislative history and EEOC guidance regarding the reasonable accommodation and interactive process concepts, and Section C examines Eighth Circuit case law.

   1. Overview of the ADA and Reasonable Accommodation Requirement

      Nearly a quarter-century after passage of the Civil Rights Act of 1964, (47) Congress began discussing the possible extension of civil rights protection to individuals with disabilities. (48) ADA legislation swiftly passed both the House and Senate, and it was signed into law by President George H.W. Bush on July 26, 1990. (49) The ADA's stated purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (50)

      The statute notes that, due to the lack of antidiscrimination laws, people with disabilities have been precluded from being able to fully thrive in the workplace and beyond because of discrimination. (51) Title I of the ADA specifically prohibits employers from discriminating against individuals with disabilities. (52) Employers with more than fifteen employees are subject to Title I requirements. (53) In general, employers may not discriminate against an individual on the basis of disability in regards to "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (54) The elements a plaintiff must show to prevail on a claim under Title I of the ADA are: (1) she is disabled within the meaning of the statute; (2) she is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment action due to her disability. (55)

      Furthermore, Title I requires employers to make reasonable accommodations to disabled individuals that need assistance to successfully perform their jobs. (56) The nature of the reasonable accommodation obligation is as follows: employers are obligated to provide reasonable accommodations that allow otherwise qualified individuals to perform the essential functions of...