Q. We have an employee who is clearly disabled. The employee has a very difficult time walking and is unable to stand for extended periods of time. His job has traditionally allowed him to do a significant amount of work sitting down. Unfortunately, the duties of the job have recently changed, and a small but significant portion of the employee’s daily activities now requires him to work while standing. While the employee has never complained or asked for any form of accommodation, it is clearly affecting both him and his performance. We want to help him, but we are afraid to approach him and suggest he needs help. He is very proud and we are not certain how he would take even well-intentioned offers of help. What can we do?
A. You face a very difficult decision. The EEOC has traditionally taken the view that employers should not initiate an accommodation discussion with an employee, as that raises the specter that the employer considers the employee to be disabled. This can lead to a “regarded as” ADA claim.
After all, how do you know he meets the legal definition of “disabled?” You do not identify your profession, but unless it is medical in nature, you should be exceedingly careful before binding the company to a disadvantageous position.
That said, however, a federal appellate court on the East Coast recently ruled that an employee suffering from an obvious disability can raise an ADA claim for failure to accommodate even if he or she never seeks an accommodation from the employer.
Essentially, the court believed that certain disabilities are so obvious that it is the employer’s duty to initiate the accommodation discussion. While this case has no binding effect on the courts in Indiana, the sentiment is at least somewhat compelling, if only at an emotional level.
Consequently, in such situations it is crucial to involve an employment attorney before making any decision on whether to approach an employee about his condition.