Dive Brief:

• Dollar General failed to extend an accommodation to a worker with anxiety, depression and migraines who requested one, despite never using the "magic words" of the Americans with Disabilities Act (ADA) when making her request, according to the 8th U.S. Circuit Court of Appeals. The worker's failure-to-accommodate claim is now headed to trial (Garrison v. Dolgencorp, LLC., No. 18-1066 (8th Cir. Oct. 3, 2019)).
• When Rochelle Garrison texted her supervisor asking for leave, he responded that none was available and she could remain with the store so long as she "could do the job and not be sick all the time." Garrison quit a week later after leaving Dollar General mid-shift to visit the emergency room.
• The court noted that a reasonable jury could conclude that Dollar General was aware of Garrison's disability, that she requested an accommodation and that had Dollar General engaged in the interactive process, it could have reasonably accommodated her. Noting that the supervisor testified that she would have protected Garrison's job under the Family Medical Leave Act (FMLA) if Garrison had been entitled to FMLA leave, the court said it "stands to reason that Dollar General could have found a way to make leave (or some other reasonable accommodation) work under the ADA too had the supervisor considered it."

Dive Insight:

The ADA requires employers to provide reasonable accommodations for employees with disabilities unless the employer would suffer an undue hardship as a result. Once an employee has requested an accommodation, employers will want to engage in the interactive process to identify possible accommodations.

As the 8th Cir. pointed out, workers do not need to use the language of the ADA in order to make an accommodation request. "It starts when an employee goes into the supervisor's office and says something like 'I'm needing something because of a condition,'" David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, told attendees at a conference last year.

The court noted that Garrison had asked about leave four times even if she never referred to the ADA or used the word "accommodation" and that the supervisor knew that Garrison suffered from various medical conditions. A reasonable jury could conclude that Garrison had requested an accommodation, even if she never used those "magic words," it said.

After a worker makes such a request, Fram said managers ought to follow up immediately by asking: "How can I help you?" From there, managers communicate with the employee to determine a reasonable accommodation, documenting each interaction along the way, as Fram recommended. Once an accommodation has been installed, supervisors should follow up to make sure the accommodation is working well. If it's not, they need to pursue a new one, Fram said.

It's worth noting that workers aren't entitled to the accommodations they prefer, as the 2nd U.S. Circuit Court of Appeals concluded in March. "Employers are not required to provide an accommodation that the employee prefers — all that is required is that the employer provide an effective accommodation," the 2nd Circuit said.