Q. We have a couple of employees who get tardies for being late and their excuses have been that they’re in the bathroom due to a disability. So I follow them to the bathroom because I know they are lying. Am I breaking the law by following them? Is this considered harassment? It’s getting out of hand. — Pam, Indiana
A. Well, it may or may not be harassment, but following employees into the bathroom doesn’t sound like a good strategy to address the problem. Some disabled employees do need accommodations that allow them to be late on occasion or use the restroom frequently. That said, you should engage in the interactive process with these employees and their physicians to determine: (1) if they are, in fact, disabled; (2) that they need flexibility to use the bathroom as a reasonable accommodation; and (3) that a number of late arrivals and absences is something your organization can reasonably accommodate but that the process is being abused.
Of course, if employees are untruthful about what they are doing when they are scheduled to be working, you may discipline them, as long as you treat disabled and nondisabled employees alike in this regard.
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