The Manager’s Dilemma: “An employee is asking about a co-worker’s accommodation. As a manager, what do I say?”

Posted by Kim Cordingly on December 18, 2013 under Accommodations, ADAAA, Employers | Comments are off for this article

By: Louis Orslene, JAN Co-Director

When I’m on the road presenting, I often get this question. Usually it is from a supervisor or hiring manager, but at times from a human resource (HR) specialist who is responsible for advising managers. Being a manager, I understand the dilemma. The manager’s role is to keep a team well informed on issues affecting the team with the ultimate goal of insuring team cohesiveness and productivity.

When asked about another employee’s accommodation, the manager can take the approach that this information is none of the business of co-workers or other employees. However, as many who have served in this role know, this may not be the most pragmatic approach. And, as David K. Fram, Esquire, Director of the ADA & EEO Services for the National Employment Law Institute (NELI) suggests “…employees – or unions – may insist on knowing why one employee gets to perform the job in a different manner.” Thus, this complicates the manager’s dilemma.

At times, when it comes to sharing information involving an employee accommodation, managers are caught between the proverbial rock and a hard place. As with much of managing, it is a balancing act. On one hand, the manager must protect the confidentiality of the accommodated employee which also serves to minimize risk for business. On the other hand, the manager needs to communicate changes in the team environment to insure team morale, motivation, and ultimately productivity.

For guidance on this issue, let’s look to two national authorities on the topic of disabilities in the workplace — the Equal Employment Opportunity Commission (EEOC), who enforces the employment provisions of the Americans with Disabilities Amendments Act (ADAAA), and NELI.

The EEOC offers:

“If employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response.  An employer also may not tell employees whether it is providing a reasonable accommodation for a particular individual.”

Fram from NELI adds:

“Some disability advocates have argued that disclosing that someone is receiving an ADA reasonable accommodation essentially reveals that the individual has a disability.”

So as a manager, “What then can I say?” First, I would suggest for the manager or HR specialist to request assistance from their legal department. A response to this question may have already been developed and sanctioned by the legal staff. If not, the EEOC offers that a manager:

“…may explain that it is acting for legitimate business reasons or in compliance with federal law.”

Fram writes that in the proceedings for Williams v. Astrue, 2007 EEOPUB LEXIS 4206 (EEOC 2007), the EEOC offered employers additional language to be considered.

Thus, a manager might also say:

“…it has a policy of assisting any employee who encounters difficulties in the workplace,” and that “…many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer’s policy to respect employee privacy.”

However, one of the most concise and informative answers to this question was articulated in a recent Employer Assistance and Resource Network (EARN) Webinar by speaker Susan W. Brecher, Esquire, of Cornell University. Susan suggests that managers say:

 “…we look and treat employees individually and make considerations based upon good business reasons which allows for privacy of each individual.”

Of the responses I’ve heard to date, I think this is the best. It provides just enough information without speaking directly to the specifics of the individual being accommodated.

References:

EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC NOTICE, Number 915.002 , Date 3-25-97, page 18.

NELI’s The Human Resource Guide to Answering ADA Workplace Questions (8th Edition), 31st Edition 9/2011, Page III-41-42.

EARN Webinar, The Interplay between FMLA and ADAAA Human Capital Development, Cornell University, ILR School.  Thursday, September 27, 2012.

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