Prove you’re disabled!
Posted: 17 June 2011 01:23 PM   [ Ignore ]
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One of our directors found an employee asleep on the job.  He fired him.  The employee said, “But I have a condition that makes me sleepy.”

The employee has been with us for awhile, and there’s never been any indication that he has any sleeping condition.  He’s certainly never mentioned it.  And, of course he has no documentation of it.

Now that the guy is gone, do you think we have to bring him back to engage in an interactive process and offer him his job back?  Shouldn’t he have to provide some sort of doctor’s note or something?

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Posted: 22 June 2011 01:30 PM   [ Ignore ]   [ # 1 ]
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I think the appropriate time to have begun the interactive process would have been immediately after the employee made the statement about his “condition,” presumably before he was fired.

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Posted: 22 June 2011 01:39 PM   [ Ignore ]   [ # 2 ]
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Phyllis is absolutely correct. Once the employee stated that he had a “condition” it put the employer on notice. At this time, the interactive process begins and the employee must submit medical documentation that said “condition” is a disability and he is a qualified individual with a disability. If so, what accommodations are being requested and are they doable (does not pose an undue hardship on the employer).

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Posted: 22 June 2011 02:39 PM   [ Ignore ]   [ # 3 ]
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This response assumes that the company is covered by the ADA, as now amended by the ADAAA.  This amendment makes it clear that the focus is going to be less on whether the employee is “disabled” and more on whether there was a reasonable accommodation that could be offered or unlawful discrimination.  Presumably the employee made the comment about the condition at the time he was told he was being terminated for sleeping on the job.  While there is certainly an argument that this was too late to reveal the “disability” and need for an accommodation, the better procedure would be to delay final action while investigating the existence of the “condition” and, if it was a disability under the ADAAA, considering whether there was a reasonable accommodation.  I think we can expect more (and more difficult) litigation about disabilities now that the ADAAA’s Final Regulations are effective.

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Posted: 22 June 2011 03:02 PM   [ Ignore ]   [ # 4 ]
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Assuming the company has 15+ employees and, therefore, must comply with the ADA/ADAAA, the employee is in a position to file a Charge of Discrimination.
At the time the employee was told of his/her termination, he/she told the Director that he/she has a “sleeping disorder.” At that moment, the employer was on notice that the employee “potentially” had to be accommodated. That does not mean that the employee, in fact, has a “sleeping disorder” or that an accommodation has to be provided. What it DOES mean is that the employer had a duty to begin the “interactive discussion” process.
What should the employer do? My recommendation is that the employer contact the employee and reinstate him/her with retro pay AND inform the employee that it is doing so pending the results of the “interactive discussion.” Doing so could prevent the employee from contacting EEOC and filing a Charge of Discrimination based on violation of the ADA/ADAAA. The courts have clearly stated that, when the employer does not engage in the “interactive discussion” process and the employee suffers a tangible employment action, the employer is always liable.

If, as a result of the “interactive discussion”, the employer determines that the employee does not have a disabiltity, then the employee can be discharged—with the “protection” to the employer of having conducted the “interactive discussion.’

This situation is one that strongly supports the fact that all managers & supervisors with the authority to hire/fire be trained regarding the ADA/ADAAA.

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Posted: 22 June 2011 03:43 PM   [ Ignore ]   [ # 5 ]
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You may wish to review “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities” At #6 it reads in part:

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer:

  tolerate or excuse the poor performance;
  withhold disciplinary action (including termination) warranted by the poor performance;
  raise a performance rating; or
  give an evaluation that does not reflect the employee’s actual performance.30

I may have posted this twice.

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Posted: 23 June 2011 02:23 PM   [ Ignore ]   [ # 6 ]
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I think that once the employee said he had a “condition” the employee should have been suspended without pay pending further information and a “reasonable accommodation” discussion.

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Posted: 27 June 2011 11:24 AM   [ Ignore ]   [ # 7 ]
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Thanks, guys…since I posted I’ve contacted EEOC local office and spoken also with JAN…

Our manager has been instructed that if there is a hint of a condition before the act that results in discipline/termination then he must refer the matter to HR for the interactive process to begin and investigation of the disability to occur.

However, in this instance, as stated above, there was no indication of a condition that would warrant protection until after the employee had been notified of the termination.  EEOC helpline and JAN were pretty clear that in this limited circumstance there was no need to delay discipline since it was clear that the employee had violated company policy.

I appreciate everyone’s input.  Thanks again!

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