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Develop procedures for breaks that accommodate disabilities

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in Discrimination and Harassment,Employment Law,Human Resources

Sometimes, employees with disabilities may need additional breaks as reasonable accommodations. For example, diabetics and others who must take medication or rest periodically should be allowed to do so if that’s possible in the jobs they hold.

But you don’t have to leave the timing or duration of the breaks entirely to the employee. If you do, it will be hard to tell whether the employee is taking a legitimate and necessary accommodations break or simply taking advantage of additional freedom. And that can lead to litigation if a supervisor comes down on the employee for not being alert and on duty.

As the following case shows, you may win that case, but only after spending considerable time and money on lawyers.

Recent case: David McNary worked for Schreiber Foods. He has Graves’ disease and diabetes. Schreiber Foods fired McNary after two supervisors found him sleeping in a back room. He was supposed to be on duty at the time. McNary said he was only taking a break and resting his eyes, which were hurting due to his disabilities.

When he sued for ADA violations, McNary told the court that his supervisors had told him he could take brief breaks as needed. The company argued that he had been fired for sleeping on the job, and that the breaks he was supposed to get didn’t include taking a nap.

The court tossed out McNary’s case. It reasoned that the company fired him for violating a company rule, and not because it wanted to discriminate against him because he was disabled. (McNary v. Schreiber Foods, No. 07-3378, 8th Cir., 2008)

Final note:
If ADA accommodations include breaks, implement procedures for how they will work. You can, for example, require the employee to tell a supervisor when he leaves for a break and when he will return. Too much flexibility can lead to misunderstandings—and litigation. 

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