Trinity Employee May Have ‘Implied’ Need for Accommodation

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By Patrick Dorrian

Oct. 17 — Trinity Health may have been aware of an employee’s need for more time to complete CPR recertification or a job reassignment while she continued to recover from neck surgery, a divided federal appeals court ruled ( Kowitz v. Trinity Health , 2016 BL 344385, 8th Cir., No. 15-1584, 10/17/16 ).

The decision addresses the important issue of whether and when an employer’s duty under the Americans with Disabilities Act to accommodate a disabled worker may be triggered without an express request from the employee. It reaffirms the general notion that no “magic words” are needed to invoke the ADA’s interactive job accommodation process, and it may take that principle a step further.

The holding that “magic words” aren’t needed is consistent with the Equal Employment Opportunity Commission’s long-standing view in its enforcement guidance that a worker doesn’t need to mention the ADA or use the term “reasonable accommodation” to request an accommodation and may instead use “plain English.”

That an accommodation request may be implied from the circumstances and context may be consistent with the view the agency took in its recent resource document on leave as an ADA accommodation. It said that a reference in a doctor’s note that an employee due to return from leave is still having medical restrictions should be viewed by employers as a request for additional leave or another accommodation.

Communication Implied Need

Roberta Kowitz’s communications with her supervisor and others, both before and after she was told she needed to update her CPR certification, may have “implied” her need for accommodation, a 2-1 U.S. Court of Appeals for the Eighth Circuit decided.

Trinity Health’s knowledge of Kowitz’s prior neck surgery, for which she was already still being accommodated, may have helped put the employer on notice of her need for further accommodation when she informed her supervisor that she needed four more months of physical therapy before she could complete the physical portion of the CPR recertification, the majority said.

“Trinity was aware of Kowitz’s specific condition, as well as the general nature of the limitations it placed on her,” from her use of medical leave and lifting and other work restrictions for her surgery, Judge Jane Kelly said. When she later notified her supervisor she wasn’t able at the time to complete the physical requirements of her basic life support or CPR recertification, she wasn’t required to use the phrase reasonable accommodation “to transform that notification into a request for accommodation,” Kelly wrote.

Kowitz was fired the day after telling her supervisor she needed additional physical therapy before she could complete the recertification, without Trinity first asking her if and how it might accommodate her, the court noted. A jury could find from those facts that she was denied her rights under the ADA and North Dakota disability bias law, it said, reviving her claims.

Judge William Jay Riley joined the majority opinion.

Dissent Says Elements of Claim Conflated

Judge Steven M. Colloton dissented. He said to prove an ADA failure-to-accommodate claim, an employee must show both that her employer knew about her disability and that she requested some type of assistance from the employer so she could continue working.

The majority, Colloton argued, conflated those two elements in a way that effectively eliminated the second requirement. He agreed that employees seeking accommodation aren’t required to use “magic words” but said they still must make it clear they want the employer’s assistance.

“[W]e have never said that merely notifying the employer of a disability is an ‘implied’ request, sufficient to trigger an employer’s duty to engage in the interactive process,” Colloton wrote.

Lori Broker in Phoenixville, Pa., and Larson Law Firm represented Kowitz. Dorsey & Whitney represented Trinity and two of Kowitz’s former supervisors.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Peggy Aulino at

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