If employee won’t admit disability, what are our reasonable accommodation obligations?

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in Employment Law,Performance Reviews

Q. One of our employees is experiencing performance-related problems, which I believe are attributable to a mental disability. However, the worker has not notified anyone here that he suffers from an impairment that substantially limits a major life activity. He hasn’t asked for any accommodations either. Should we nonetheless offer to reasonably accommodate this employee?

A. Generally, no. Employers do not have to reasonably accommodate a disabled worker until he or she notifies the company of a disability or the need for accommodation.

Asking an employee if he or she suffers from a disability may allow the worker to claim that you “perceived” him or her as disabled. That violates state and federal laws.

The safest approach is to focus solely on the performance deficiencies and treat this worker as you would any other employee experiencing similar performance problems.

However, the EEOC takes the position that an employer should initiate a reasonable accommodation discussion if it:

  1. Knows the employee has a disability
  2. Knows or has reason to know that the employee is having work 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 then states that he or she does not need a reasonable accommodation, the EEOC continues, the employer will have fulfilled its obligation.

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