Q. One of our employees is experiencing performance-related problems that I believe are attributable to a mental disability. However, the worker has not notified the company that he suffers from an impairment that may be a covered “disability” under state or federal laws. Nor has he asked for any accommodations. Should we nonetheless offer to reasonably accommodate this employee?
A. Generally, no. Employers are not obligated to reasonably accommodate a disabled worker until he or she has notified the company of his or her disability and/or the need for accommodation.
Asking whether an employee suffers from a disability may allow the worker to claim that you perceived him or her as disabled in violation of state and federal laws—even if the impairment is not protected.
The safest approach is to focus solely on the performance deficiencies and treat this worker as you would any other employee experiencing similar problems.
However, the EEOC takes the position that an employer should initiate a reasonable accommodation discussion if it: (1) knows that the employee has a disability; (2) knows or has reason to know that the employee is experiencing workplace 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.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Unionized Workplaces: Management's Rights
- When religion is crux of workplace problems, base discipline on behavior--not belief
- Thorough and confidential investigation is best HR response when harassment strikes
- Denied benefits, former detective suspects foul play