Most employers are aware of their obligation to explore reasonable disability accommodations when an employee asks for such a measure. But, what if the employee never asks? A new decision out of the United States Court of Appeals for the Eighth Circuit raises the concerning possibility that an employer could indeed be held liable for failing to provide a disability accommodation even if the employee never requested one.

In that case, a respiratory therapist at a North Dakota hospital took a leave of absence to undergo spinal surgery. After the surgery, she returned to her job with lifting and work hours restrictions. Not long after her return, the hospital reminded employees of the need to complete a CPR certification test. The respiratory therapist took and passed the written portion of the test, but notified her employer that she could not complete the physical portion until cleared by her physician. Because CPR certification was an essential function of the respiratory therapist position, the hospital terminated her employment.

The employee sued under the Americans with Disabilities Act (ADA), claiming that the hospital should have allowed her additional time to obtain CPR certification, or transferred her to another position that did not require this certification. In response, the employer noted that the respiratory therapist never requested any such accommodations.

The court sided with the employee, determining that a jury could reasonably conclude that she had sufficiently “made her employer aware of the need for an accommodation” – even if she did not actually request one – when she informed the hospital of her surgery and resulting limitations. The court reasoned that an employee is not required to “invoke the magic words ‘reasonable accommodation’” to trigger the employer’s obligation to explore the need for a reasonable accommodation through the interactive process.

ADA issues present many challenges and employers should always be alert and review ADA best practices. Following this case, an employer should not simply wait for an accommodation request. Rather, an employer should begin the interactive process as soon as it learns that the employee has a physical or psychological condition that may be impacting his or her job performance. This has always been a best practice, but is now backed up by the threat of possible ADA liability if not followed. Determining whether a particular situation raises the need to engage in the interactive process can be tricky, and employers are well advised to seek legal counsel when unsure of whether they may have duties to accommodate.