From the desk of Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
You notice an employee seems disheveled and his job performance isn’t up to par. You’ve heard rumors that he has a drinking problem. He’s been a good employee and you’d like to help him. You decide the best approach might be to just ask him if he has alcoholism and whether he needs an accommodation. Is that the best approach?
In the past, an employee disclosed that she as multiple sclerosis (MS) and she asked for accommodations related to parking because of muscle weakness and fatigue. Recently she’s been making typing errors and has missed a couple of work deadlines. She hasn’t said anything to you, but you’re concerned that her MS is affecting her job performance. You want to talk with her about it and ask her if there are accommodations that might help. Should you? Does it matter that you’re a federal contractor?
Here at the Job Accommodation Network, we frequently get questions from employers about whether they may, must, or should ask employees if they need reasonable accommodations. Asking employees if they need an accommodation is classified as a medical inquiry under the Americans with Disabilities Act (ADA) and therefore governed by the ADA’s rules regarding medical inquiries and examinations. These rules can be hard to figure out sometimes, but fortunately in this case there is written guidance to answer these questions.
The following questions and answers are from the Equal Employment Opportunity Commission (EEOC) in a document called Reasonable Accommodation and Undue Hardship under the ADA.
- Question: May an employer ask whether a reasonable accommodation is needed when an employee with a disability has not asked for one?
- Answer: 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. For example, an employer could ask a deaf employee who is being sent on a business trip if s/he needs reasonable accommodation. Or, if an employer is scheduling a luncheon at a restaurant and is uncertain about what questions it should ask to ensure that the restaurant is accessible for an employee who uses a wheelchair, the employer may first ask the employee. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation.
Applying this guidance to the scenarios posed in the beginning of this article, I’d say in the first one there may not be enough information for the employer to show it has a reasonable belief that the employee needs an accommodation because of a disability because all the employer has is a rumor about drinking problems.
In the second scenario the employer probably can show a reasonable belief that the employee’s disability is creating a possible need for accommodation and therefore the employer can probably ask the employee whether she needs an accommodation.
That’s the “may,” what about the “must”?
- Question: Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one?
- Answer: Generally, no. As a general rule, the individual with a disability -- who has the most knowledge about the need for 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.
Applying this guidance to our scenarios, it doesn’t look like the employer in either situation must ask if an accommodation is needed. But what about the question about federal contractors?
Federal contractors have a greater duty to ask if an employee needs an accommodation under Section 503 of the Rehabilitation Act. The following is from section 503 regulations:
- As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee's disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.
So in the second scenario, a federal contractor probably has a duty to ask whether the employee’s performance problems are related to her MS and if so, whether she needs an accommodation.
That’s the “may” and the “must,” but what about the “should”?
Should you ask an employee whether an accommodation is needed when you don’t have a legal obligation to do so? There’s nothing wrong with asking an employee whether he or she needs an accommodation when you’re sure you meet the reasonable belief standard, but perhaps an easier approach is to just ask “Is there anything we can do to help you overcome the problems you’re having?” With this approach, you don’t mention disability or accommodation so you don’t have to worry about the ADA’s medical inquiry rules, but at the same time you let the employee know that you would like to help. If it turns out the employee has a disability and needs an accommodation, you have opened the door for the employee to disclose.
If you need more information on this topic or any other accommodation issue, contact us at JAN!