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Remind managers to note disability disclosures

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in Discrimination and Harassment,HR Management,Human Resources

The ADA protects disabled employees from discrimination, but it’s up to the disabled employee to come forward. Employers can’t be expected to be clairvoyant. Smart employers find a way to track those disclosures.

Here’s an example of why that’s important: Let’s say an employee misses lots of work and often arrives late. He hasn’t explained to his supervisor that he has a disability that contributes to his attendance problems. When he is fired for poor attendance, he sues, alleging disability discrimination. He may claim that he told his supervisor, and it becomes a he-said/she-said situation.

Then consider what would happen if your policy requires supervisors and managers to document all disability reports and forward them to HR. If HR records don’t show any disability referrals, you can convincingly argue that the supervisor is being truthful when he says the employee never told him he was disabled.

And if a manager doesn’t know about a disability, he can’t discriminate on that basis.

Recent case: Car dealership employee Daniel Drozdowski was often tardy. When he took a few weeks off, he never told anyone at the dealership that it was to be treated for depression and anxiety.

When he returned, so did his tardiness problem. He was finally fired, but got a job with a competitor. Then his original employer bought the second dealership—and promptly terminated Drozdowski.

He sued, alleging disability discrimination.

The dealership said it never knew Drozdowski was disabled. Because it did not, it could not have violated the ADA when it fired Drozdowski either time. (Drozdowski v. Northland Lincoln Mercury, No. 08-1510, 3rd Cir., 2009)

Advice: Designate one person to receive disability reports and to coordinate accommodations.

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