How Come Terry Gets to …? (Danger: Don’t Answer)

It’s a tough situation when a coworker asks, “Why does Terry get to do that?” and “that” is an accommodation you’ve made for Terry’s disability. But you must not discuss the disability, says Trainor.

Trainor, who is senior managing editor at BLR®, was joined in her presentation at the Human Resources Leadership Association in Mystic, Connecticut, by Farrell, who is a legal editor at BLR.

“Terry” may be coming in late, leaving early, taking long breaks, or whatever, but you must not reveal that the action is allowed because you’re accommodating a disability. Trainor recommends that you say to the employee, “That’s Terry’s schedule. If you want to pursue that further, talk to HR.” HR might say that the answer to the question involves private information that has to be kept confidential.

The Equal Employment Opportunity Commission (EEOC) recognizes that this situation is tricky for employers. The EEOC says that employers may respond to coworkers’ questions by explaining that they will not discuss the situation of any employee with coworkers. The employer may explain that it is acting for legitimate business reasons or in compliance with federal law, Farrell says.

Or, the employer could point out 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. It may help to reassure the employee asking the question that his or her privacy would be similarly respected if the situation were reversed.

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The Interactive Process

If you turn down an accommodation, says Trainor, most anyone can make a claim, and that makes the interactive process a vital component of compliance—and defense. The interactive process is a dialogue between the employer and the employee. While engaging in the interactive process:

• Don’t rush to judgment. Avoid assuming that there is a legal obligation, and avoid assuming that there is no reasonable accommodation.
• Address the work problems first. That is, not, “Are you on drugs?” or “Do you have a disability?”, but “Here’s the work problem. What can we do about it?”

The employee may just need something simple like keeping a leg elevated, Trainor says. And whatever you do, document it carefully.

You start the interactive process as soon as either the employee requests an accommodation or the employer is otherwise alerted to the need. There is no need for the employee to use any magic words or to ask in writing. An employee might say, for example, “I have work restrictions from my doctor,” or “Can I come in late because of medical treatments?”

It’s a good idea to have supervisors refer all such requests to HR. That assures consistent treatment and prevents supervisors and managers from giving the quick “no” that means no interactive process, but yes, a lawsuit.

Avoid assumptions about a disability or about restrictions; you could then be vulnerable to a “regarded as” claim or a failure to accommodate claim.

Job Descriptions Are Key to Compliance

In complying with the ADA, your job descriptions are a key component, says Farrell. As most claims involve essential functions at some point, it is imperative that the essential functions of the job are clearly delineated in the job description. It’s also important, says Farrell, to check to make sure that the listed essential functions are part of the job as it is performed in the real world.

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