Employment Law

Greg’s supervisor notices that Greg does not perform the job as well as he used to. Greg had mentioned having a bad back, but has not suggested it impacts his performance.

What should the supervisor do? Have a conversation with Greg just like you would with any employee demonstrating a decline in performance. Focus on Greg’s job performance. Don’t assume his performance issues are related to a bad back or any other medical condition, and don’t ask if they are. Rather, describe your concerns about Greg’s performance and ask Greg why he thinks that his performance is slipping.

Remember, the ADA protects employees who are regarded as having a disability, even if they don’t actually have one. Do not speculate about the reason for poor performance. Ask the employee for the reason.

Greg tells his supervisor that his bad back is making it difficult to do his job, and he needs help.

What should the supervisor do now? Supervisors need not be ADA experts. But, they should receive enough training to recognize that Greg has made a request for a reasonable accommodation. Employees need not use specific words to trigger a reasonable accommodation analysis. The analysis can be triggered if the employee suggests that a medical condition is interfering with the ability to do the job.

Do not ask about Greg’s medical condition. Rather, ask: “What can the company do for you?” Once you have Greg’s response, bring the matter to human resources. HR should set a meeting with Greg and take the lead on the matter from here.

HR meets with Greg. Greg confirms what he told his supervisor about his back and his need for help performing the job.

What should HR do? HR should engage in an “interactive process” with Greg. This is a process in which Greg and HR brainstorm and discuss whether the employer can provide some type of assistance that would enable Greg to do his job. Before making things more complex than necessary, Greg and HR should consider the following: Is the need for assistance obvious? If yes, is there an easy solution? For example, if all Greg needs is a relatively inexpensive back support belt that he would keep at work, do it.

Should HR worry about setting precedent? No. The whole point of the ADA reasonable accommodation process is to address the unique needs of the employee at issue. The process of determining if a reasonable accommodation is appropriate might be precedent setting (for example, meeting with the employee, brainstorming, and potentially getting medical information), but the reasonable accommodation actually offered is, almost by definition, not precedent setting.

Should HR obtain medical information before agreeing to any changes?  Sometimes medical information is helpful to the process. I’ll address that in the next post.

(This post is not legal advice. Consider consulting with a lawyer about any specific situation)