I am the HR manager for a nonprofit agency that has 21 employees. One of our employees has been a great performer in the four years they’ve been with us. Their job involves primarily clerical duties.
Recently, we’ve noticed this employee has been having problems keeping up with the workflow generating and delivering documents for our clients. We’ve observed missed deadlines, inaccuracies, and an overall slowdown in production.
We have also noticed that this employee may have developed a problem with their arm or wrist. We see the employee shaking their arm and hand quite frequently, holding and rubbing their arm during the time they are typing, or using their arm to reach for or to lift things.
The employee has not told us of any injuries, medical issues, or doctor visits they are planning to take, but we think these observations while they work may have a connection to the performance issues we see. In addition, we have had no requests for any accommodations from this employee.
We are mindful of the ADA interactive process, but our understanding is that we must wait until the employee has asked for an accommodation before we formally start the process.
Is this correct or can we initiate the process based on our observations and the belief they may have a disabling condition?
You have good instincts about this situation. Before we discuss your specific situation, let’s start with a bit of background about the ADA. Stated simply, the Americans with Disabilities Act, better known as the ADA, was passed into law by Congress to ensure, among other things, that disabled employees are not subject to discrimination, and to address the rights of disabled employees in the workplace.
One of the most important aspects of the employment related ADA, as you note, is that the employer has an independent duty to engage in a good faith interactive process with the disabled employee to determine if a disability limits the ability of the employee to perform the essential functions of their job. The purpose of the interactive process is also used to determine whether there are any reasonable accommodations that can be put into place to allow the employee to perform their job functions. Essentially, accommodations can be described as a modification or adjustment, either in the way the work is customarily done, or in the work environment itself
Your question about when to initiate the interactive process is a good one, since there’s often uncertainty on the part of employers when confronting an employee’s problem performance that might be due to a medical or disabling condition.
In the usual scenario, the employee, aware of their own physical or mental health condition, asks for an accommodation to help them do their job duties. However, there are times when the employer must initiate the interactive process without receiving a request for accommodation from the employee. EEOCʼs guidance provides that an employer should initiate the reasonable accommodation interactive process without being asked if the employer:
- Knows or notices that the employee has a disability;
- knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and;
- knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
Obviously, in the situation you are facing, the second basis clearly requires you to initiate and engage the employee in the interactive process. As you have described it, you have observed the employee’s workplace performance problems and have also observed the employee’s discomfort with and attending to their arm and hand—indicating this physical issue is contributing to the performance issues.
Some employers may have policies instructing their employees to provide written notice of the need for an accommodation. However, these policies do not excuse the employer from ignoring verbal, visual, or other cues that might establish a need for an accommodation. Also ensure that the employee’s supervisors are trained to report observations or information that may trigger the need to initiate the process without a request. Once the employer has notice of a disability and the possible need for an accommodation, the ADA requires proactive, prompt, effective, and good faith discussion about accommodations—as is the case when the employee makes a direct request for an accommodation.
When you have enough information to establish that the employee has a disability compromising employee’s ability to perform their essential job functions, you need to approach the employee and initiate the interactive process, without having to wait for the employee’s request for an accommodation. Taking this action satisfies your independent duty under the ADA and provides the support for the employee in distress, whether they are aware of their shortcomings, to deal with these issues and get back to work performing their jobs up to expectations.
It’s truly a win-win situation.
Disclaimer: Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice of legal counsel. The material presented here is for informational purposes only. You are responsible for appropriate use of resources and should consult your attorney if you require legal assistance.
In case you missed it…
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.