Imagine you are the newly assigned manager of one of your employer’s grocery stores. After evaluating all your department managers during the first two weeks on the job, you meet with the bakery manager three times over the next nine days. During these meetings, you tell her that she is not doing her job, and you give her a list of tasks she must perform or face discipline, including possible discharge. You also tell her she has the option to step down from the management role (which she has performed satisfactorily for 15 years).
During the second meeting, the bakery manager tells you she has a lot going on, could not stay late to fill the bakery shelves, and has an upcoming biopsy medical appointment. Soon after the third meeting, the bakery manager goes on medical leave.
After a four-month medical leave during which she had breast cancer surgery, the bakery manager returns to work without any restrictions.
A week after the medical leave ended, you meet with the bakery manager and again tell her she is still not meeting expectations. The bakery manager replies that she is “struggling,” “tired,” and “exhausted.” She says she worked 53 hours her first week back, which was “hard for [her] physically.” She tells you that she needs “some time to get back to normal” and wants a chance “to get used to all the work again.”
While you are sympathetic, you tell her that “business is business.” You remind her that she has the option to step down if she cannot satisfactorily perform the bakery manager job if she does not want to face discipline or potentially discharge. The bakery manager leaves the meeting without agreeing to step down.
But one week later, the bakery manager transfers to a different department, and then later leaves your store to work as a bakery clerk at another store with less authority and a lower salary.
No worries, right? There wasn’t anything else you needed to do, was there?
A recent decision of the Sixth Circuit Court of Appeals reversing summary judgment on a “failure to accommodate” claim involving these facts teaches otherwise. Yanick v. Kroger Co. of Michigan, Case No. 23-1439 (6th Cir. April 29, 2024).
Context matters when considering whether an employee has asked for accommodations. While the Yanick case arose under the Americans With Disabilities Act, its lessons apply to discussions involving religious practices or beliefs, and limitations caused by pregnancy, childbirth, or related medical conditions, for which employers must provide reasonable accommodations under Title VII of the Civil Rights Act of 1964 and the Pregnant Workers Fairness Act.
It is clear under all of these laws that the employee (or job applicant) has a burden to communicate to the employer the existence of a disability, pregnancy limitation, or religious belief or practice, a need for assistance with a conflict between the disability, belief or practice, or limitation, and job duties or policies, and a general explanation of how the employer could help. It is also clear that the employee need not expressly mention legal rights or cite any statute or legal authority.
In Ms. Yanek’s case against Kroger, the district court ruled that her comments to her store manager did not link her requests to a medical condition or explain how her request was necessary to remedy an obstacle arising from the medical condition. The Sixth Circuit disagreed on both points, even though it recognized her comments were “no model for how to make an accommodation request.”
The Sixth Circuit emphasized that employers “must draw reasonable inferences from what an employee says, bearing in mind the statements’ context.” There was enough context here for a reasonable manager to know that an accommodation request had been made, that is, “a request for a reduced work schedule.”
Ms. Yanek had recently undergone breast cancer surgery and had been absent for four months. She stated that she was struggling, needed more time and a chance to adjust, and linked these issues to her physical condition. Accordingly, said the appellate court, the evidence was not so one-sided that no jury could find in favor of Ms. Yanek.
The Sixth Circuit turned down Kroger’s argument that Ms. Yanek had been released without restrictions. Once again indicating the need to look at the context, the court noted that Kroger’s assumption that Ms. Yanek was fully fit for work was appropriate until she “explained that she was still struggling physically,” that is, she had “lingering issues from her disability.” These comments essentially triggered Kroger’s right and duty to ask for corroborating medical information. Kroger did not.
The Sixth Circuit further held that a request for a reduced work schedule appeared reasonable in this context. Her problem was fatigue, and less work for a period could combat this issue. As the court put it, a “reduced work schedule would provide Yanick more time to recuperate and get reacclimated to her job’s physical demands.”
Because the store manager (and the HR rep in the room, by the way) did not recognize or understand that Ms. Yanek was requesting an accommodation, the company failed in its obligation to consider whether less work for a reasonable period (before further discipline or a forced demotion) would be a reasonable accommodation.
Companies can learn from Kroger’s misstep. The case clearly demonstrates the need for training managers and supervisors on best practices for action when employees mention medical issues, religious beliefs or practices, or pregnancy limitations, particularly during performance evaluations or disciplinary actions.
Early recognition by management that an employee has asked for accommodations means the employer can start or continue the necessary interactive process, rather than shutting down and denying the possibility of accommodation. You don’t want to be in the position of Kroger and the store manager learning years after the fact that a jury will decide whether you unlawfully denied an accommodations request.
About Our Author
Scott Hetrick is the Adams and Reese Labor and Employment Practice Team Leader, and is a Partner practicing in the Mobile office. Hetrick is a management rights advocate who represents employers on federal and state labor and employment law compliance and dispute resolution. He speaks frequently on employment law and human resource management issues at seminars for personnel managers and business owners and has published numerous articles on employment law. Hetrick has been recognized in Best Lawyers® in Employment Law since 2010, including named “Lawyer of the Year” in Mobile.