What to do when you notice issues or signs exhibited by an employee that you believe may be related to a medical issue?

Employers often notice performance, attendance, or other issues that lead them to be rightfully concerned about their employees’ well-being and safety. Managers, supervisors, and other decision makers in the organization should be trained to recognize situations and signals that could point to medical or personal issues requiring engagement in the interactive process under the Americans with Disabilities Act (“ADA”). The ADA not only prohibits employment discrimination based on disability, but also creates responsibility for employers to make good faith efforts to reasonably accommodate applicants and employees with disabilities.

According to the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Disabilities can be wide ranging, and many life events can give rise to situations requiring reasonable accommodation under the ADA.

By definition, the ADA applies to persons who have substantial, as distinct from minor, impairments that limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. For example, an individual with epilepsy, a substantial hearing or visual impairment, or a learning disability would be covered, but an individual with a minor, non-chronic condition of short duration, such as an infection or broken limb, generally would not be covered.

Many less obvious, but unfortunately common issues, such as those related to addiction (including alcohol and drug use) or other personal matters (including anxiety, domestic violence, stalking, and assault) may also trigger ADA protection, so it is vital that an employer be mindful of the potentially wide applicability of the ADA and closely monitor changes in employment performance. While employees are technically required to make an affirmative request for reasonable accommodation and cooperate with the interactive process, many employees either aren’t aware of their right to ask for accommodation, or they don’t know how to initiate the process.

In practice, employees don’t have to make a formal request or use any magic words to notify employers of the need for accommodation, so employers must be alert and proactive. If an employee mentions some type of medical or health problem or physical limitation, or otherwise expresses that he or she cannot perform the essential functions of his or her job because of a disability, employers should engage them in the interactive process. If needed, an employer may seek information from the employee’s doctor to confirm the existence of a disability and determine the employee’s ability to perform essential functions of the job.

Note, however, this doesn’t mean employers should jump to conclusions or go around asking every employee who exhibits performance issues about their medical information or needs. To the extent possible, employers should leave it to the employee to decide whether to disclose any physical or mental impairment. The ADA largely prohibits employers from asking medical questions or requiring the employee to take medical tests, so employers generally should not inquire about an employee’s medical information or history when it is not offered up by the employee.

Instead, when an employer recognizes performance or attendance issues it believes may be related to a medical issue or disability, the employer should initially focus on addressing the performance or attendance problems. This may include monitoring the employee’s performance for some time to understand the full scope of the problems, properly documenting them, and then discussing them with the employee. Such conversations could lead the employee to disclose a disability or medical issue for which the employee requires accommodation.

If the employee does not disclose any medical issue or disability, however, an employer generally should not assume one exists. Instead, the employer can follow its policy and procedures for discipline and coaching, and continue to document all its efforts to help the employee perform his or her essential job duties. Detailed documentation helps paper the file in the event the employer must terminate the employee for failure to perform, or for otherwise violating company policy.

If an employee does make a request for accommodation, employers must engage in an open dialogue about what the employee needs to successfully perform his or her job. An employee’s suggestions for accommodation are often a good place to start, but employers are not necessarily required to accommodate in the exact way requested by the employee. Employees must also participate in the interactive process. If an employee requests a particular accommodation that would create an undue hardship for the employer, or the employer otherwise wishes to accommodate in another, reasonable manner, the employee should cooperate and consider the alternative accommodation.

Employers should generally consider all available options and accommodate if they can. If ultimately, the employer can’t provide an accommodation, detailed documentation of good faith efforts will place the employer in the best position to defend against potential claims of ADA discrimination. As every situation varies, we encourage you to reach out to your myHRcounsel legal team to discuss specific circumstances and review your obligations under the ADA.

 

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