ADA Protection???
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37 Posts
In June we hired a garage attendant who upon completion of his new hire packet marked "No" on all questions on his Medical Questionnaire indicating he had no previous conditions and that he did not now or had never had psychiatric/phychological treatment or nervous condition. He was thoroughlytrained in the handling of guest vehicles and keys and handled the position on the overnight shift for two months. On Aug. 15, his manager arrived at the worksite at 7 AM to find car keys scattered all over the floor of the attendant's booth and vehicles that were not parked in the slots shown on the lot diagram. It took over an hour to get the area straightened out and all the guest vehicles properly accounted for. Prior to his next shift that evening, the employee was called in and terminated for failure to follow procedures regarding handling of guests keys and vehicles and causing inconvenience to guests who had to wait for their vehicles while the manager matched all the keys to the cars. On August 18 a call was logged from a local hospital stating they needed information on this employee. I was out of town and when I returned on Monday, Aug 22, I returned the call. It was from a social worker at the local hospital who indicated that the employee was in the hospital under lockdown on the third floor (anyone in the community knows that that is the psychiatric ward). I explained to the woman that he had been discharged for failure to follow procedures on August 15, etc. I did not question her further as I did not feel it appropriate to discuss his condition for privacy reasons. She volunteered that he was "off his meds" advised he would be there for a while and that she would inform his doctor that he had been discharged from his employment prior to his admission to the hospital.
Today, a woman alledging to be the employee's wife called. (His file indicated he was single and his emergency contact was an individual identified as his fiance' - he was being garnished for child support paid to a woman with his same last name). The woman said she wanted to advise us that he was in the hospital. I explained to her that I was aware that he was in the hospital and that the social worker called but had not gone into specifics about his condition since we informed her that his employment had been terminated on August 15.
She then began to spout about how "You can't discriminate against him." I politely told her that no discrimination had occurred - that we had not learned of any problem until August 22 - a full week after his termination - and that we were unaware of any medical condition as he had not disclosed anything on his medical questionnaire.
She said thank you and hung up. I don't think, however, that that is the last we'll hear from her. Are we on good standing here or should I start worrying????
Also, Is a mental health problem protected if the patient deliberately stops taking his/her meds? Wouldn't that be the same as an alcoholic making a conscious decision to drink?
Can we ask about mental conditions post offer that might place a guest, another employee or guest or company property in danger - and if so, would this be an appropriate cause to withdraw an offer?
Any input would be appreciated! Thanks.
Today, a woman alledging to be the employee's wife called. (His file indicated he was single and his emergency contact was an individual identified as his fiance' - he was being garnished for child support paid to a woman with his same last name). The woman said she wanted to advise us that he was in the hospital. I explained to her that I was aware that he was in the hospital and that the social worker called but had not gone into specifics about his condition since we informed her that his employment had been terminated on August 15.
She then began to spout about how "You can't discriminate against him." I politely told her that no discrimination had occurred - that we had not learned of any problem until August 22 - a full week after his termination - and that we were unaware of any medical condition as he had not disclosed anything on his medical questionnaire.
She said thank you and hung up. I don't think, however, that that is the last we'll hear from her. Are we on good standing here or should I start worrying????
Also, Is a mental health problem protected if the patient deliberately stops taking his/her meds? Wouldn't that be the same as an alcoholic making a conscious decision to drink?
Can we ask about mental conditions post offer that might place a guest, another employee or guest or company property in danger - and if so, would this be an appropriate cause to withdraw an offer?
Any input would be appreciated! Thanks.
Comments
To begin with, the fact that you had no knowledge of any of his condition is probably your best defense.
I don't know how an employer could be criticized for the actions you took in this situation. You simply had no way of knowing that there was any sort of problem. Had the EE been forthcoming, you might have some exposure in an ADA situation, but I cannot imagine an accomodation that would allow you to overlook the situation you found on August 22.
The only thing about this story that gives me pause is that you shared information with someone claiming to be his wife, when the only information you had was that he was not married. The fact that you discussed his situation with this person is some sort of breach, but I don't know how it could come back to bite you here. Some lawyer might be telling you how in litigation to come, but I am not that imaginative.
As to your final question, assuming the post offer EE would give you permission, there is all sorts of background investigation you might do to determine if there were any of a variety of issues that might concern you. It would probably be very expensive - but as to specifically asking the medical history question, I will defer to others.
I can see it being an extension of the ADA question, which could cause discrimination issues for you if you do not hire someone who was taking meds for instance, when the meds would control the problem.
Edit: forgot to check the email box again!
Mental health diseases can definitely rise to the level of protection under the ADA. Most times, these are not readily apparent because the ee is taking his or her medication. Unfortunately, most people that suffer from a mental disorder will not continue to take the necessary medication, it is part of the illness. Once the meds reach the therapeutic level, these individuals begin to believe that they can function normally without the meds and begin to reduce the amount of the med by taking half a dose, not taking all the daily doses, etc., until they are completed off the meds. That is the unfortunate side of the illness because once the meds are not at a level to stabilize the person, they begin to exhibit signs of the disorder. My brother is a classic example of this.
You do not know if this person qualifies under the ADA because you do not know about his personal life to determine if he is restricted in a major life activity, such as bathing, dressing, etc. What you do know, is that he was able to perform work for a period of time. Did you or his supervisor perceive him as having an impairment? If not, he has a hard road to hoe to bring a claim of ADA discrimination. Additionally, you hired him, which is a good fact for you. It is not reasonable that you would hire him, when he suffered from an alleged impairment, only to turn around and release him for being impaired. Based solely on your summary, I think you are fine with the discharge. As always, make sure you have the documentation to support your decision, look for comparators, etc.
I would not have discussed the ee's employment status or his current whereabouts with anyone. You have HIPAA concerns, plus it should be a common practice to only discuss employment related matters with the ee, with few exceptions. I am not sure what ramifications there might be for this, it depends on if the ee complains and to who.
I would not do a separate mental screening, but if you require a post offer physical, you can speak to the Dr. you use to see if they can do anything to determine if there are any potential mental issues. I am not sure what you would be able to do with that information, if anything. I would run that by your attorney before I looked at that.
"Whenever I start to feel blue, I start breathing again!"
Even had you known of his medical condition, thus giving him some degree of ADA protection, that protection does not extend to poor performance, regardless of whether he took his meds.
I agree that you should have had no discussion with the female caller.
"When I start to turn blue, I realize it's time to put gasoline on a rag and scrub my fingers off. I use a lot of spray paint on the weekends."
You should not single mental conditions post offer because, if a person is taking their meds and do there job, there is no issue. There is no certainty, however, that someone will continue to take their meds (but, then again, this is true of everyone).