Accomodations for ADA

mikey · April 2003

I have an engineer with Hepatitis C whose job performance has steadily declined over the past year or so. He has been given the usual reviews telling him what he must do to improve his performance and recently was put on 6 months probation unless he meets certain standards of performance. His doctor has written two notes asking our "forgiveness" for this engineer's declining performance and that the meds he is on causes this. The engineer feels we are railroading him and using this as a means to "get rid of him". He wants "accommodations" but cannot tell us what those accommodations are. I've asked him to provide us a list of the accommodations he feels he needs and we will do what we can - but that we cannot lower the standards of his job due to this situation. What else can I do and am I handling this correctly? Thanks

LindaS · April 2003

I think you are handling the situation properly. The ADA accomodations process is an interactive one between the employee and the employer. You have requested he provide information regarding what types of accomodations he needs but if he doesn't provide them, there is nothing you can do. Continue treating him as you would any other employee but make sure you are documenting everything so you can substantiate any potential issues down the road.

I have a similar situation with an employee and have been advised by our attorney to address the performance issue and that it is the employee's responsibility to ask for accomodations. If we, as employers, start making accomodations without the employee requesting them, they gain protection under ADA regardless of whether they actually have a disability.

Good luck!

mikey · April 2003

Thank you for your response to my question. Another member suggested I go a bit further and request Guidance on ADA from the EEOC. He/she gave me an address of [url]http://www.eeoc.gov/docs/accommodation.html[/url].

Thanks again, Mikey

Hatchetman · April 2003

[font size="1" color="#FF0000"]LAST EDITED ON 04-16-03 AT 00:00AM (CST)[/font][p]In this situation, I am assuming from what you have posted that the doctor has verified a medical condition, and that you have determined that the employee is disabled under ADA and that there is a need for reasonable accommodation to allow him to perform the essential duties of the job.

You've only partly engaged in the interactive process. You're correct to seek the employee's input as to possible accommodations. Have you asked the emplyee what types of work problems are arising as a result of the Hepatitis? You should do that even if the employee can't identify specific accommodations. While the employee may not exactly know what type of accommodation may be needed, the doctor may. Have you given the doctor a job description and asked for his or her input as to what accommodatioins he or she thinks would allow the employee to perform the essential duties of the job.

And you are not limited to the employee and the doctor in such an inquiry. The Job Accommodation Network in West Virginia may have some ideas; or a support organization for people with Hepatitis may be able to help.

It is true you are not required to lower job performance expectation, but you may be required to modify the way the job is done, or to allow other accommodations that will allow the employee to meet job expectations. Merely saying that the EMPLOYEE didn't come up with any suggestions that would not require you to lower the standards of performance, I don't think would convince EEOC that you satisfactorily engaged in the interactive process if it comes aknockin' because of an ADA complaint.

The best way of defending the company against allegations of failing to meet its obligations under ADA is to seek out possible accommodations; determine if they are reasonable in allowing the employee to meet pefomance expectations and then implment them if they are. If the employee then fails to meet those expctations after implementation of reasonable accommdation, your company would then be able to more clearly argue that the employee was not ADA qualified because he could not do the job successfully either with or without reasonable accommodation. Therefore discharge would be appropriate as you would do with any other documented poor performer.

But don't fall back on the position that "it's not OUR respnsibility to do anything if the employee personally cannot identify possible accommodations that wouldn't lower the standards of performance."

You may get some help on this issue from EEOC Guidance on ADA, Reasonable Accommodations and Undue Hardship.

The web address for that is [url]http://www.eeoc.gov/docs/accommodation.html[/url]

mikey · April 2003

Hi and thanks for replying. Some of the things you suggested I have in fact already done (i.e. asking him for the kinds of problems he has, asking him to have his doctor make some suggestions, checking with the Hepatitis support group he is a member of, etc.) I'll check out the web site you provided.

Thanks again, Mikey

Don D · April 2003

Although I think Hatchetman's advice is excellent and well thought out, I would caution against the employer embarking almost independently on a 'tooth-pulling' process that will (1) determine medical issues (problems), (2) identify accomodations that the employer feels are reasonable/appropriate and (3) implement those accomodations, hoping for successful outcomes. The interractive process indeed will require input from the doctor after he thoroughly reviews your job demands and compares that with his patient's capabilities; however, at some point toward the end of the day, it is the employee in concert with his physician who must arrive at what accomodation to request of the employer. The responsibilities are not co-equal. I would never call a doctor who wrote me a note telling me to contact him if further information is needed, nor would I entrust my health to one whose practice included that. What you really need to guard against is the employee who may later say, "He did nothing to accomodate me and my disability". The opposite of doing nothing is not doing everything.

Accomodations for ADA

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