The 2nd Circuit Court of Appeals holds that absent a formal reasonable accommodation request, an employer is not always expected to assume that a disabled employee needs workplace accommodation under the Rehabilitation Act. This is the first time the Court of Appeals has applied its ruling from 2008 that held that employers have to offer a reasonable accommodation if the plaintiff’s qualifying disability is obvious to management.
The case is Costabile v. New York City Health & Hospitals Corp., issued on February 25th, 2020 (18-2816-cv). This decision differentiates from the Court’s decision from 2008 in Brady v. Walmart, 531 F. 3rd 127(2nd Cir), holding that “where the disability is obvious — which is to say, if the employer knew or reasonably should have known that the employee was disabled, the employer is obligated to engage in an interactive process with their employees and in that way work together to assess whether an employee’s disability can be reasonably accommodated.”
Brady represents an exception to the general rule that disabled employees must affirmatively request an accommodation from their employers to trigger the interactive process, in which all sides try to find accommodation for the employee. The plaintiff in Costabile uses Brady to advance his own case.
The facts here are instructive. “After sustaining a work-related injury in May 2014, Plaintiff remained on a leave of absence from his position as a permanent carpenter for over a year. During his leave, pursuant to NYCHHC policy, Plaintiff provided NYCHHC with regular updates from his doctor as to his condition and ability to work.” He was fired after he did not respond to the employer’s letter that he interpreted to mean that he could only return to work full duty if he could complete all the job functions. “He alleges that, although he could perform the job’s essential functions with or without accommodations, he could no longer perform certain functions of the carpenter job, even with an accommodation.”
The issue here is was the employer on notice Plaintiff needed accommodation for his disability? Under Brady, “to trigger the duty to engage the interactive process, the employer must have known, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act, as opposed to a mere impairment.” The complaint does not permit the inference that management knew.
The Court writes:
“Plaintiff does not allege that he ever requested an accommodation from Defendants, either formally or informally. It is undisputed that Defendants knew Plaintiff was on an extended disability leave from work-related injuries. But this alone is insufficient to plausibly allege notice that those injuries constituted a disability under the Act. As Plaintiff alleged, he took work related disability leave on multiple occasions for conditions that did not prevent him from returning to work without any accommodations.”
Similarly, while Plaintiff alleged that Defendants received notice of his multiple sclerosis in April 2010, his multiple sclerosis was not a qualifying disability at that time, as he continued working without any accommodations until his 2014 leave. Finally, although Plaintiff alleged that Defendants received regular updates from his doctor on his condition and ability to work, he alleged no facts about the content of those updates from which it could plausibly be inferred that Plaintiff’s disability was obvious to Defendants.”
While this case only involved the Rehabilitation Act of 1973, the reasoning may also apply to the Americans with Disability Act of 1990, as both federal disability discrimination statutes generally apply the same legal standards.
This case should be helpful when drafting disability discrimination cases, as medical information may need to be explained in detail for accommodation requests.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected], (716) 856-KORN (5676) or www.lindykorn.com.