Can you accommodate disabilities you don’t know about?

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in Discrimination and Harassment,Employment Law,Human Resources

Issue: The Americans with Disabilities Act requires disabled employees to advise you about their need for accommodation.

Benefit: Courts will side with you if you can prove a "good faith" effort to accommodate disabled employees.

Action: Document each accommodation request and how it was handled, plus any changes made at the employee's request.

You don't need to be a mind reader when it comes to establishing "reasonable accommodations" for disabled employees. The Americans with Disabilities Act (ADA) places the burden squarely on disabled employees to speak up about their need for accommodation. Simply put: You can't fix what you don't know about.

But once a disabled employee asks for an accommodation, you must make a "good faith" effort to comply, with input from the employee. And follow through if the employee reports a change in his or her condition or needs.

Recent case: A production manager took medication for depression that tended to cause "morning sedation," so she was frequently late for work. The company changed her schedule, letting her arrive one hour later.

When she voluntarily returned to her original time slot, she assured her manager that she'd arrive on time and didn't ask for any further time accommodation. But when the lateness continued, she was given a warning and eventually terminated.

She sued, claiming the company violated ADA by withdrawing her late-arrival accommodation. But the court sided with the company, saying the employee was responsible for the communication breakdown.

Reason: She failed to update the company about her condition and need to resume the accommodation. "Neither the law nor common sense can demand clairvoyance of an employer," the court said. (Conneen v. MBNA America Bank, No. 02-1504, 2003)

Note: The company proved its "good faith" in accommodations by showing that: 1) When the employee voiced her need, she was immediately accommodated. 2) The company didn't withdraw the accommodation without the employee's consent. 3) Even after the accommodations were withdrawn, the employee was given time to adjust. 4) The company's supervisory and medical staff met regularly with the employee.

Lesson learned: After making an initial ADA accommodation, continue to document further action on the case. Record any additional changes at the employee's request, including that the accommodation is no longer needed.

? Free report: 'ADA: The Limits of Accommodation'

The Americans with Disabilities Act requires you to make "reasonable" accommodations for disabled staff. Our free E-visory report, ADA: The Limits of Accommodation, will help you decide how far to go. For a free copy, visit www.hrspecialist.net/extra.

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