From the desks of Melanie Whetzel, M.A., CBIS, Lead Consultant – Cognitive/Neurological Team and Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
In our experience at the Job Accommodation Network (JAN), most individuals disclose their disabilities to their employers when they need an accommodation. However, there are other reasons an individual might disclose a disability to an employer such as affirmative action hiring, explaining an unusual circumstance, or just personal preference and comfort in bringing their whole selves to work. One of the questions we often get from individuals who have disclosed without needing an accommodation is what happens if later they do need an accommodation? Are employers on notice and is it then up to them to recognize that an accommodation is needed?
Under the Americans with Disabilities Act (ADA), the answer is generally no. In most cases an employee must notify the employer that an accommodation is needed even if the employer knows that the employee has a disability. In fact, employers may be prohibited from asking whether an accommodation is needed unless they have a reasonable belief that an employee’s known disability is creating a workplace issue. This approach makes sense if you think about it; we don’t want employers making assumptions about an employee’s disability and need for an accommodation.
Questions 40 and 41 in the Equal Employment Opportunity Commission’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA discuss when an employer may or must ask an employee whether an accommodation is needed.
May an employer ask whether a reasonable accommodation is needed when an employee with a disability has not asked for one?
An employer may ask an employee with a known disability whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs a reasonable accommodation.
Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one?
Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for a reasonable accommodation -- must inform the employer that an accommodation is needed.
However, an employer should initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation.
So, if you need an accommodation, it is generally best to let your employer know as soon as possible. Something to keep in mind is that under the ADA, employers do not have to rescind discipline or negative performance evaluations that were earned prior to a request for an accommodation even if the issues are disability-related and the employer knows you have a disability. You need to tie the two together, inform the employer that the issues are related to your disability and that you need an accommodation.
Here are several examples that illustrate what can happen if an employee does not inform the employer that a known disability is creating a workplace issue:
John calls JAN extremely upset because his employer has written him up for being late. His next occurrence will result in termination. John states that his employer knows he has Attention Deficit Hyperactivity Disorder (ADHD) because he disclosed it in the interview. John feels that if his employer knows he has ADHD, the employer should know that he is unable to be on time and cannot be held accountable for his tardiness.
John should have notified his employer that his tardiness was related to his ADHD the first time it was brought to his attention as a problem. That way he and his employer could have explored accommodation ideas that may have spared him from getting to the point of termination.
Tracey is a computer programmer with multiple sclerosis who has missed deadlines for projects, requiring coworkers to complete her work. She has not been keeping up with training on the new computer systems and procedural changes. Tracey is placed on a performance improvement plan. Because her performance does not improve, she is terminated.
At no time did Tracey relate her performance issues to her disability, nor did she ask for an accommodation. Under the ADA, her employer did not have to ask her if her performance difficulties are related to her disability.
Arlo discloses to his human resources (HR) department liaison that he has bipolar disorder. The HR liaison asks if he needs an accommodation, and Arlo replies that he does not. She makes a note of the conversation and places it in the appropriate confidential file. Three months later Arlo is written up and placed on a suspension for behavior at work. After being suspended, he tells JAN that the behavior was due to the sleep medication he takes for his mental health condition. He feels that his employer should cut him some slack because they know he has mental health difficulties.
Arlo’s disclosure to his employer does not give him a blanket excuse for violating conduct rules that other employees without disabilities are held to and suspended for as well. Once Arlo makes his employer aware that his behavior issues are related to his disability, they may start the interactive process to move forward with accommodations that can help keep this situation from resurfacing. Even if Arlo is granted a reasonable accommodation, the employer does not have to rescind the prior disciplinary action and he may still be disciplined or terminated for violating conduct rules in the future.
As you can see from these examples, there are different legal protections when an employer knows of and understands an employee’s disability-related performance or conduct issues. Employers can hold all employees to the same performance and conduct standards but are obligated to consider accommodations when the need for the accommodation is known. A disclosure that does not include information about how the disability affects the employee on the job and the possible need for accommodations does not automatically protect the employee from disciplinary action when performance and conduct standards are not being met. If you need an accommodation, let your employer know, providing not only information about your disability, but also about how it affects your ability to do the job or meet conduct standards and what accommodations you need. For more information about requesting accommodations, see our page for individuals.