On October 7th we asked the questions: 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?
We spotlighted a new decision from an Illinois federal court which held that the employer (the US Postal Service) had enough facts to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”
Our experts opined helpfully, as set forth below:
Marc Brenman, instructor at Morgan State University in Olympia, WA:
“I would exercise caution where there is no self-identification by an employee as a person with a disability or a request for a reasonable accommodation (though no “magic words” are necessary).
The ADA prohibits treating an employee like a person with a disability where there is no disability. The employer should not make assumptions or guesses. In the particular decision cited, the employer had various pieces of evidence that the employee might have a disability.
But without that strong evidence, I’d be reluctant to leap to the reasonable accommodation process. (Unless, as EEOC has noted in pregnancy reasonable accommodation cases, where the employer in effect reasonably accommodates everyone …).”
Christopher Fields, HR consultant in the Greater Memphis area:
“Usage of the work “Must” seems definitive. The USPS should have made an attempt or an inquiry before terminating the employee. They seemed as if they weren’t concerned at all. So I think employers should make a reasonable accommodation to assist employees.”
Michele Sommer, HR expert, Trumbull, CT.:
Interesting article, Richard. I agree a bit with both Marc and Christopher. I don’t normally leap to making an accommodation, however as part of discussions with employees who are having performance or attendance issues I do talk about what needs to change.
If an employee brings up a medical issue or has a doctor’s note, I do mention that regardless of the reason why they are out, the fact that they are out frequently or without communication is a problem. I then tell them that if they think that their medical condition is the reason for the performance or attendance issues, then they may want to speak with their medical provider and if there was something that they or their medical provider felt that any of us could do to help them be more successful they should document that and get back to me.
That way I wasn’t making a specific offer, but was making it clear that I was open to discussing. And if they said that they didn’t want or need an accommodation, then I would document that as well.”
Marc Brenman added:
“It’s important to note that disabilities don’t have to be “medically related.” Often there is no doctor involvement.
Second, most doctors aren’t very helpful about what accommodations a person with a disability might need, since they’re not work or job oriented. An exception is the chain of “light duty” cases, and situations where a doctor says an employee has to sit down for X minutes every hour.”