1. FEATURE STORY:
EMPLOYER OBLIGATED TO OFFER ADA ACCOMMODATION
ABSENT EMPLOYEE REQUEST
Contrary to what employees may think, you're not a mind reader. If you are unaware that an employee has a disability and they haven't requested an accommodation, you are under no obligation to offer one. However, if the disability is obvious, the duty to accommodate might be yours, even if the employee hasn't asked for an accommodation.
In a case before the 2nd Circuit Court of Appeals, a 19-year-old employee who had cerebral palsy, which noticeably affected his ability to walk, talk, see, and eat, was hired as a pharmacy assistant. His supervisor quickly became frustrated with his performance and moved him out of her department; he went from dispensing prescriptions to collecting shopping carts and garbage in the parking lot. He was eventually transferred to the food department, but was not offered the option of returning to the pharmacy. He quit after being given a schedule that conflicted with his community college schedule, which he had noted on the employer's availability forms.
In defending against the employee's subsequent failure to accommodate claim, the employer asserted it had no duty to accommodate because: 1) the employee never requested an accommodation, and 2) he didn't think he needed one.
An individual with a disability generally shoulders the responsibility of requesting an accommodation. This requirement is rooted in preventing the individual from keeping their disability a secret and later suing for a failure to accommodate. Where a disability is obvious, however, such secrecy does not exist, thus, rendering the notification rule unnecessary, held the 2nd Circuit. The court based its ruling on the fact that the Americans with Disabilities Act (ADA) speaks to accommodating "known" disabilities, not just disabilities for which accommodation has been requested.
The employee was awarded $900,000 in compensatory and punitive damages, plus $644,000 in attorney fees. (Brady v. Wal-Mart Stores, Inc., 2nd Cir., No. 06-5486-cv, 2008)
The 2nd Circuit stressed that employers are obligated to initiate the interactive process when an obvious disability adversely impacts an employee's performance. "When an employer is faced with an employee who has difficultly performing certain tasks because of his or her disability, it cannot sit back passively and then turn around and fire the employee because of its own failure to accommodate," said Equal Employment Opportunity Commission Regional Attorney Jacqueline McNair in another ADA settlement involving the same employer.
If, during the interactive process, you are unclear as to whether the employee can successfully perform the essential duties, with or without accommodation, you can request that the employee submit to a medical exam in order to determine the nature and severity of the disability, as long as the exam is job-related and consistent with business necessity. Keep in mind that the medical exam must not exceed the scope of the employee's specific disability and its effect on their ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat. If requesting an exam, consider providing the employee's physician with a Request To Medical Practitioner For ADA Assessment Of Employee Ability To Perform Job Functions, just one of the more than 75 free HR forms offered by AHI.
If, after exhausting the interactive process, you decide to terminate or demote an employee with a disability for poor performance, you must be able to prove that:
You counseled the employee about their performance problem.
You explored reasonable accommodation options.
None of those accommodations helped the employee improve their performance.
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2. CATHIE'S CORNER:
FILLING THE HOLES WHEN POSITIONS ARE ELIMINATED
Well, September 1 has come and gone, which means that Major League Baseball teams can now expand their rosters from 25 active players to 40. My beloved Red Sox didn't do much of anything in the way of expansion. Since they have several players on the disabled list, most of the players they would have considered bringing up from the minors are already here. Boston is in an unusual situation this year in that their AAA team, the Pawtucket Red Sox, and their AA team, the Portland Seadogs, are both going to their respective playoffs, which start this week, with Boston itself likely to make the post season. Since Pawtucket and Portland are the teams from which Boston would call up players, they don't want to decimate the younger teams in order to help the big club. Will that leave them with holes of their own to fill? Only time will tell. That's the question: How can they utilize the players they have to maximize the strength of all three teams and fill all the holes created by injuries and internal transfers from team to team?...Continue the story.
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