Handling Employee with Health Issues
joanbone
2 Posts
We have an employee with Lou Gehrig's disease who is progressively declining and becoming unable to do a number of job responsibilities. They have not come forward in asking about reasonable accommodations for their position and many tasks this individual is now unable to do. With all the laws in place, how best does an employer move forward to discuss with this individual that they can no longer fulfill their job requirements. Has anyone dealt with issues such as this?
Comments
Well, because you have raised the issue of disability yourself, the employee is now perceived to be a person with a disability, which invokes the duty to enter into a dialogue udner ADA. Meet with the person and say, "John, it's come to my attention that a number of your responsibilities are not being handled <timely/correctly/whatever>. Is there anything about your personal or work situation that could be affecting your job performance that you think I should know about?"
They'll say they have ALS and you'll ask them how ALS affects their ability to perform their tasks and then see if there's a way to come up with a reasonable accomodation.
They may request or otherwise indicate that time off for treatment would be beneficial. Does FLMA apply to your business at that work site? Does the employee qualify for FMLA? If FMLA is a non-issue, do you have diability coverage or other forms of leave that may apply to this person's situation?
Definitely go down the ADA/FMLA/Leave route before going down the performance discipline route.
The EEOC says this about the issue you raise (in its enforcement guidance on reasonable accommodation at http://www.eeoc.gov/policy/docs/accommodation.html#requesting):
Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one?
Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for reasonable accommodation -- must inform the employer that an accommodation is needed.(108)
However, an employer should initiate the reasonable accommodation interactive process(109) without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation.
Example: An employee with mental retardation delivers messages at a law firm. He frequently mixes up messages for "R. Miller" and "T. Miller." The employer knows about the disability, suspects that the performance problem is a result of the disability, and knows that this employee is unable to ask for a reasonable accommodation because of his mental retardation. The employer asks the employee about mixing up the two names and asks if it would be helpful to spell the first name of each person. When the employee says that would be better, the employer, as a reasonable accommodation, instructs the receptionist to write the full first name when messages are left for one of the Messrs. Miller.
An employer may ask an employee with a known disability whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. For example, an employer could ask a deaf employee who is being sent on a business trip if s/he needs reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain about what questions it should ask to ensure that the restaurant is accessible for an employee who uses a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation.(110)
I've been previously advised by counsel to ask the question I recommended earlier because 1(3) above can lead to a material disagreement about the facts if the employee claims they told you. That is, the person can say they asked for accomodation and make a response for you, which can end up being left up to the jury to decide as there will be a dispute about the facts. If you ask them in a documented, witnessed conversation, any claims about failure to enter into a dialogue or to make reasonable accomodation are substantially weakened. 1(3) above can lead to circumstances that are analagous to the situation in which the supervisor says she terminated someone's employment after repeated verbal reprimands, which the former employee denies ever occurred.