Must an employee who needs an accommodation (disability-related) actually request it?  Or must the employer be “clairvoyant” and infer such a request from the circumstances of the case?

Not an easy question, it turns out.  But according to a new decision from a federal court in Illinois, the employer US Postal Service had enough facts to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”

That case was brought under the Rehabilitation Act, whose relevant portions here are applicable to the ADA since —  as the Court said, “The Rehabilitation Act obligates all recipients of federal funds to accommodate employees with disabilities … Courts look to the provisions of the Americans With Disabilities Act (“ADA”)).

The plaintiff postal employee was suffering from depression and anxiety, of which the Postal Service was unaware, and went absent frequently for extended periods without explanation.  She submitted a series of doctor’s notes which stated only that she was “totally incapacitated” and unable to work.   No diagnosis was ever stated.

She was ultimately fired.

According to the Court, the Postal Service should have “inferred” that the employee might need accommodation based upon the above facts of her frequent absences and the submission of her doctor’s notes.  This was an implicit request for accommodation, if you will, and one that “should have put Defendant on notice that something was amiss,” and therefore required the Postal Service to commence an interactive accommodation process.

The Court’s reasoning as to the purpose and requirements of the “interactive process” is interesting and instructive, and we therefore quote it at length:

“No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the [interactive] process for the purpose of either avoiding or inflicting liability.  Rather, courts should look for signs of failure to help the other party determine what specific accommodations are necessary.  A party that obstructs or delays the interactive process is not acting in good faith.  A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.

This standard persuades the Court that both parties are at fault in this case. Barfield [the employee] made no attempt to tell Defendant what the nature of her disability was … There is no reason to believe that Defendant knew that she suffered from depression, anxiety, dizziness, or any of the other symptoms that she identifies in her affidavit.  Even if depression made it difficult for Barfield to communicate with her employer, Defendant had no basis for knowing that fact because it did not learn of her depression before January 15, 2012. …

On the other hand, Barfield’s extended absence from work, together with her physician’s numerous — and completely unambiguous — messages that she was ‘totally disabled’ should have put Defendant on notice that something was amiss. The ADA and Rehabilitation Act do ‘not require clairvoyance,’ … But a reasonable employer could be expected to inquire into an unidentified disability whose unspecified symptoms allegedly prevent an employee from coming to work for months at a time.”

So what is the takeaway from this decision?

First, “The ADA and Rehabilitation Act do ‘not require clairvoyance.’”  That’s a relief!  An employer is not required to divine a disability or a request for accommodation never made if there are no facts or circumstances which would or should lead it to “infer” such.

The second point is is the obverse of the first.  If there are indeed facts or circumstances which would or should lead an employer to “infer” a disability, and that an accommodation may be needed by the employee, even if not requested, prudence would dictate that the employer engage in the “interactive process” – and initiate it if need be.

Our advice to employers is to try to err on the side of an expansive reading of the laws (i.e., how the EEOC might read the laws), unless that presents an undue burden.