Professional Service Agreement

Employer Should Have Understood Employees Communications to be Accommodation Request

October 24, 2016

A federal appeals court has held that, even though the Employee did not explicitly request a reasonable accommodation, the Employer should have understood the communications the Employee did make were an accommodation request. In July 2010, the Employer approved the Employee’s request for leave for corrective neck surgery related to a degenerative disease of her spine. In October 2010, the Employee returned as a respiratory therapist with physical restrictions in place for several weeks.

In November 2010, the Employee’s supervisor posted a memorandum that directed employees in the department to provide updated copies of their basic life support certifications (CPR training). Several employees, including the Employee, did not have up-to-date certifications. Although the Employee took and passed the written portion of the certification, she informed her supervisor that she would be unable to take the physical portion until her doctor cleared her to do so.

The Employee also thanked her employer for understanding her condition and stated that she was doing her "best", but wanted to "protect the surgery" she had undergone. The Employee’s doctor then determined that she needed to complete at least four more months of physical therapy before she could take the physical portion of the certification. The Employee informed her supervisor and the next day she was fired because of her inability to perform basic life support. The Court held that the Employer violated the Americans with Disabilities Act (ADA) because it was reasonable to find that the Employee had made the Employer aware that she needed accommodation, even if she did not ask for one "in so many words."