June 11 Tip of the Week

“What is an Accommodation Request”

The Case

A recent decision in the Sixth Circuit Court of Appeals regarding an employer’s obligation to accommodate an employee with a medical condition is instructive to employers.

In Yanick v. The Kroger Company of Michigan, Case No. 23-1439 (April 29, 2024), the Sixth Circuit reversed a lower court decision regarding whether an employee had properly made a request for accommodation. 

The employee, Mary Ellen Yanick, had worked as a manager in a Kroger bakery for more than 15 years when she was diagnosed with breast cancer and upon learning of her diagnosis, Yanick shared that information with one of her supervisors.

After telling the supervisor, Yanick claimed that she was subjected to harassment and excessive criticism regarding her job performance. Prior to her diagnosis, Yanick had received generally positive evaluations. She also worked with a new supervisor who, after learning of her cancer, subjected her to constant criticism and harassment, recommending that Yanick step down from her manager role.

After the meeting where stepping down from the manager role was discussed, Yanick went out on medical leave to address her cancer diagnosis. After an approximately four month medical leave, Yanick returned to work, approved by her doctor with no restrictions. Yanick’s supervisor continued to barrage her with questions and criticisms regarding her performance.

During the first week back, Yanick’s supervisor met with her and asked her how it was going. Rather than allowing Yanick to share her experience, the supervisor continued the pattern of criticism and harassment that had been ongoing prior to Yanick’s medical leave. Yanick’s supervisor continued to press her regarding her performance, reminding her that, if she didn’t do better, she could be subject to discipline up to and including termination. The supervisor reminded Yanick that she could step down as the manager of the bakery and, about two weeks after returning to work and meeting with the supervisor, Yanick did step down and transferred to another Kroger store. Yanick then filed a claim for disability discrimination with the EEOC. 

Upon receiving a right to sue letter from the EEOC, Yanick then pursued an ADA claim against Kroger on the following grounds. The grounds include:  (1) disability discrimination; (2) failure to accommodate; and (3) retaliation. The lower court granted Kroger’s summary judgment motion finding that Yanick could not demonstrate an adverse employment action and that she did not request an accommodation.  In reversing the lower court’s decision, the Sixth Circuit focused on the issue of whether Yanick requested an accommodation.  In holding that she did, in fact, present evidence to support Yanick’s request for an accommodation, the Sixth Circuit found that, because there is no “bright line rule” regarding whether an employee has requested an accommodation, an employer has an obligation to “draw reasonable inferences from what an employee says, bearing in mind the statements’ context.” 

In Yanick’s case, the court found that when Yanick shared that she had worked 53 hours in her first week back at work that she was struggling. When Yanick stated that she “needed some time to get back to normal,” this could reasonably be viewed as a request for an accommodation – specifically, a reduced work schedule.  Noting that Yanick’s attorney stated that she also wanted to be “badgered less” by her supervisor, the court stated that that claim alone would not establish a legitimate request for an accommodation:  “The ADA doesn’t impose a general duty on employers to be nice. Instead, employers need only provide accommodations addressing ‘a key obstacle’ presented by an employee’s disability.”  The Sixth Circuit found that Yanick’s comments, taken together with her cancer diagnosis and treatment, constituted sufficient information for the employer to understand it to be a request for accommodation. 

Kroger challenged this finding, based on the fact that Yanick was returned to work without restrictions. In rejecting Kroger’s argument, the court stated that, while Kroger could initially rely on the doctor’s note returning Yanick to work with no restrictions, it had an obligation when it became clear that Yanick was having difficulty based on her comments in the meeting where she said that she was struggling and needed time to get back on her feet.  The court noted that the timing of Yanick’s comments, approximately one week after she returned from a medical leave of absence for cancer treatment, was sufficiently related to her medical condition to be deemed a request for accommodation. 

What does this decision mean for employers?

This decision is a reminder to employers that, when dealing with employees with medical conditions, it is important to be cognizant of the employee’s potential physical limitations when reviewing the employee’s performance. Kroger tried to characterize their interactions with Yanick as counseling for not meeting expectations; however, the employee’s job performance history and her medical condition required Kroger to listen to the employee’s responses to the performance concerns and treat them as a request for accommodation.

As a result, this request for accommodation then triggers the interactive process.

It is easy for employers to get frustrated with employees that they feel are not hitting the mark and to take a strong approach to an employee’s poor job performance. This can backfire, however, particularly when you have an employee who does not have a history of poor performance and they are experiencing a personal medical issue. Courts and other state agencies may be sympathetic to the employees’ plight and try to protect them from the employer’s negative treatment.

When faced with similar employee issues, myHRcounsel can assist you in understanding your obligations under the law and provide you with tools and advice to manage these difficult interactions. With a subscription to our ASK HR service, employers can consult with our attorneys about disability accommodations and performance management issues.