Are we obligated to seek disability accommodations for an employee who hasn’t asked for an accommodation?
Quick Answer
Generally, it is the employee’s responsibility to inform the employer of a need for a disability-related accommodation. However, the employer should initiate the accommodation process without being asked if it:
- knows the employee has a disability
- has reason to believe that the disability is causing workplace issues, or
- has reason to believe the disability is preventing the employee from seeking an accommodation.
Legal Perspective
Bryan Cave Leighton Paisner
Chicago, Illinois
Generally, no; the employer’s obligation to engage in the interactive process is triggered by the applicant or employee informing the employer that an accommodation is needed as a result of a medical condition, says employment law attorney Christy E. Phanthavong (christy.phanthavong@bclplaw.com).
However, neither “magic words” nor any reference to the “ADA” or “accommodation” is required.
Both the EEOC and courts have indicated that employers may be placed on notice by employee statements connecting some sort of work-related challenge with a medical condition (e.g., “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing”).
Relevant Case Law
Cady v. Remington Arms Co.
Brady v. Wal-Mart Stores, Inc.
Walton v. Spherion Staffing, LLC
HR Insight
US Real Estate Services Inc.
Foothill Ranch, California
When you see there is a need, it is important to engage with the employee to open the conversation, says HR Manager Sallie Hansen.
Ask if they have all that they need to perform their job to the best of their ability. If the employee doesn’t immediately engage, I’d ask them to think about the tasks they need to perform and what tools or equipment would help in getting the tasks completed to help the employee problem-solve. It’s important not to speak about a perceived disability but to open the conversation around what they need.
Bakersfield ARC
Bakersfield, California
It’s important to reach out and ask questions without making assumptions, according to HR Specialist Erlinda Gomez.
Ask open-ended questions, and listen to the answers. Some people may not know that they can ask for accommodations, but if they’re stating issues and conditions that are creating hardships, you should consider it a request and work to resolve any problem so that it is beneficial to both parties.
My Support Staff
Memphis, Tennessee
First, it’s important to know that disability is a broad term and that it’s never OK to ask for specific medical information such as a diagnosis, explains CEO Christopher Mead.
However, what is OK (and highly encouraged) is to talk to your employees. For example, if an employee has had diminishing performance, ask something like: “John, you’ve always been a good employee. However, over the last few weeks, we have seen a decline in performance. What can we do to help?” This opens the door for an employee to start the conversation. Documenting performance issues, conversations, etc. can help later on down the line if a decision has to be made to terminate the employee.
The Cost of Noncompliance
Layoffs during the pandemic: What a $184K ADA mistake looks like
Who was involved: Gas Field Specialists, Inc., a natural gas well service company in Pennsylvania, and an employee who had been with the company for 15 years.
What happened: The EEOC filed a disability discrimination lawsuit on behalf of the employee, alleging he was fired because he has a history of cancer. According to the suit, the owner of the company said he didn’t want the employee to get sick with COVID-19 and “had to lay off anyone with health issues” during the pandemic.
The ADA prohibits companies from making employment decisions – including lay-offs – based on a real or perceived disability as well as a history of disability.
Result: The company has agreed to pay $174,000 in lost wages and $10,000 in compensatory damages to the employee. The consent decree also:
- Prohibits the company from taking adverse actions against workers with underlying medical conditions that increase their risk of more severe health complications if they were to contract COVID-19.
- Requires the company to document its business reasons if employees are not recalled from seasonal layoff.
- Orders the company to provide ADA training for managers and HR staff.
- Compels the company to report to EEOC any employee complaints of disability discrimination.
- Requires the company to provide compliance reports to the EEOC for three years.
Info: Gas Field Specialists to Pay $184,000 to Settle EEOC Disability Discrimination Case
Company withdraws offer to pregnant candidate, pays $77K to settle EEOC claim
Who was involved: Saint Clare’s Health, a division of Prime Healthcare Services that operates two hospitals in New Jersey, and a pregnant candidate.
What happened: A pregnant candidate was hired as an emergency medical services dispatcher. A few days before her start date, she was hospitalized and diagnosed with preeclampsia, a pregnancy-related impairment affecting the circulatory system. The woman contacted HR about her diagnosis and asked what steps she needed to take next. The company responded by withdrawing her job offer rather than providing “the minor accommodation of delaying her start date by several weeks,” the EEOC’s lawsuit alleged.
Result: Under the consent decree, the company paid $77,500 in damages and lost wages to the woman. It also had to:
- Stop discriminating against employees and applicants based on disabilities, including pregnancy-related impairments
- Update its internal policies.
- Provide mandatory training on federal anti-discrimination laws.
- Submit compliance reports to EEOC for two-and-a-half years.
Info: Saint Clare’s Health to Pay $77,550 to Settle Disability Discrimination Lawsuit, 3/3/22.
Fired employee gets $125K to resolve ADA claims
A company in Idaho will pay $125,000 to settle ADA discrimination and retaliation claims filed by the EEOC on behalf of a former employee.
What happened: Jivaro Professional Headhunters, LLC is a recruiting agency in Idaho that employs about 25 workers. The company fired employee Felicia Bauer after she was hospitalized due to her disability. Bauer filed a complaint with the EEOC. Afterward, the company retaliated against her by providing “negative and misleading job references to potential employers,” according to Bauer. The EEOC sued on her behalf, alleging discrimination and retaliation in violation of the ADA.
Result: Under the settlement agreement, the company will pay $125,000 to Bauer. It must also hire a consultant to help create and implement policies that comply with the ADA. The company also has to provide ADA training that focuses on employers' legal obligations regarding reasonable accommodations for employees and applicants. Finally, the company will also undergo EEOC monitoring for five years.
Info: Boise Recruiter to Pay $125,000 to Settle EEOC Disability Discrimination and Retaliation Lawsuit
Key Takeaways
- It is generally the employee’s duty to initiate the interactive process by requesting a disability-related reasonable accommodation.
- Accommodation requests need not take any special form or use any “magic words.”
- Employers who know or should know that the employee has a disability that is causing issues and preventing the employee from asking for an accommodation should ask whether an accommodation is needed.
- If an employer asks and an employee says an accommodation is not needed, the employer has met its ADA obligations.
- Employees generally have 180 days to file an administrative charge of discrimination. This period begins on the date of the alleged discriminatory action. If a state law bans age discrimination in employment and a state agency or authority enforces that law, the limitations period is extended to 300 days. Once it receives the charge, the EEOC or state agency will investigate the allegations. If no resolution is reached, it typically will issue is known as a right-to-sue letter to the employee. The employee then has 90 days to file a lawsuit.
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