A recent post of ours dealt with a new decision from an Illinois federal court which held that the employer had enough facts about an employee and her condition to infer an “implicit” request for an accommodation and a need to engage in the “interactive process.”
This led us to ask: Does an employee who needs an accommodation for a disabling condition actually have to request it, or can/should/must the employer infer such a request from the circumstances of the case?
We think that these questions need a thorough discussion with experts in the field, and so we published some good reader comments.
Here are two more incisive comments:
Geoffrey Mort, an employment Lawyer in NYC:
“This is a troubling but important question. Many employees with disabilities who are having trouble at work and could benefit from a reasonable accommodation have no idea that they are entitled to request one. I’ve handled several matters where an employee who was likely disabled under the amended ADA talked to HR and others in the workplace about their problems handling certain assignments, but didn’t know about reasonable accommodations and thus didn’t ask for one.
It’s not realistic to expect such employees to know the law or consult a lawyer, and courts should recognize that in some situations there can be implied requests for an accommodation that trigger the responsibility to begin an interactive process about what can help the employee capably perform his/her duties.”
Kerry Rieder-McLaughlin, an HR consultant in Montgomery, Illinois:
“In situations where someone has an obvious disability, i.e., pregnant, in a wheelchair or obviously has trouble seeing, it is safe for the employer to ask if the employee would require an accommodation to make doing their job more comfortable, etc. In addition, as the NLRB noted, if the employer has enough information that they should have known that a disability existed then they can begin that discussion as well.
I strongly urge against employers becoming mindreaders, however, and encourage them not to ask someone if they have a disability when they only have suspicion of one. I believe that employees with disabilities are savvy enough to know what their rights are and what they need in order to perform the essential functions of a job they are qualified for, whether it is a magnifying glass, an additional break, or an ergonomic workspace.”