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Involvement, not psychic ability, is your duty under the ADA

by on
in Discrimination and Harassment,Employment Law,Human Resources

When it comes to establishing "reasonable accommodations" for disabled employees, the Americans with Disabilities Act (ADA) puts the burden squarely on employees' shoulders to speak up about their needs for accommodation. Simply put: You can't fix what you don't know about.

But once the request is made, you must make a good-faith effort in an interactive process with the worker to set up the accommodation. So while you don't need to be a mind reader, you do need to act accordingly once the disability comes to light.

Recent case: A production manager took medication for depression that caused "morning sedation," so she was frequently late to work. The company changed her schedule, letting her arrive one hour later, but the tardiness continued. When she returned to her original time slot, she assured her manager that she'd be on time and didn't ask for any further time accommodation. But when the tardiness continued, she was given a warning and eventually terminated.

She sued, claiming the company violated the ADA by withdrawing her late-arrival accommodation.

Was the employer or the employee responsible for the breakdown in communication? The employee, said a federal appeals court. Reason: She failed to keep the company apprised of her condition and her need of accommodation. The court said that "neither the law nor common sense can demand clairvoyance of an employer." (Conneen v. MBNA America Bank N.A., No. 02-1504, 3rd Cir., 2003)

Bottom line: In this case, the company's "good-faith" accommodations were evident:

  1. When the employee initially documented her disability, she was immediately accommodated.
  2. The company never withdrew the accommodation without the employee's consent.
  3. Even after accommodations were withdrawn, the employee was given time to adjust.
  4. The company's supervisory and medical staff met regularly with the employee.

A Free E-visory report: 'ADA: The Limits of Accommodation'

The ADA 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 you need to go. For a free copy, visit www.you-and-the-law.com/extra.

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