Accommodate Learning/Language Disability

HRQ

A former employee's father called me to discuss his daughter's separation. He claims she is unclear why she doesn't work for us any more, and because of her learning and language disabilities, we should have allowed him in on conversations with her. Employee is 20 years old.

He claims he "tried" to advise the supervisor well before the separation, but he said the supervisor is rude, condescending, refused to listen to him, and that she told his daughter "you are old enough to have a job, your father shouldn't be calling here."

The employee didn't need accommodation to do her job - but from what I gather, she didn't clearly understand what was happening with her employment. This is based on what her dad told me, I have not received feedback from the supervisor yet.

I'm gathering the facts from the supervisor, but here's the chain of events;
- July: employee suspended pending investigation of a child discipline-related incident
- employee restored to employment, suspension remained unpaid, employee demoted to teacher assistant, advised that hours may be reduced.
- This is on a disciplinary document the employee signed, and was given a copy. (Teacher assistants are less "useful" to staffing than regular teachers because they can't be left alone with children)
- over the next few months, employee's payroll hours fluctuate, then stop. Paperwork in the file says she is changed to "substitute" status.
- September: employee is called to come in to work, she can't due to other commitment
- December: dad calls me

Clearly, the supervisor could have been more patient and understanding - a "customer service" issue. That may have prevented his call to me in the first place, but too late now.

Because dad attempted to tell the supervisor his daughter needed his involvement because of her disability, should we have accommodated by allowing him to help her understand and communicate her own employment issues?

SMace

I would require the employee submit medical documentation of her learning/language disability before I did anything.

Now, will she understand this request or should you just talk to the Dad? I would normally never involve a family member in employment issues, but under the circumstances I suggest you call the dad and make the request and follow it up with a certified letter to the ee. Also let the dad know that.

Now ball is in is court and they will most likely fade away.

marc

If someone is competent enough to get to work and do their job, how can they not understand employment issues?

While I have lots of sympathy for the situation, I don't think you need go further.

Also, unless significant paperwork exists that indicates the duaghter is not competent to manage her own life, you should not be discussing employees situation with anyone else. Now if the daughter had come clean to start with, and disclosed a "disability," how would you know what kind of accomodation to institute? And, would you have hired her had she said, I need my Dad around for normal employment communication? I think that is an unreasonable request. How do you know when she gets it and when she does not? There are plenty of complicated things for an EE to get - try to explain how a health care plan works - try to explain optional benefit packages - try to explain - well, you get my drift.

The daughter and the father need to work through this, because she has years of employment(s) ahead of her, and they need to decide how she is going to function. Once they work that out, ER's would have a chance at making something work.

Toto

In reading your post, the first thing I started thinking was, if she has such learning and language disabilities, how did she make it through the interview process without that coming to light. She may have been able to do the duties with reasonable accommodation but unless she has gotten worse since being hired how were you to know without notification?

My thought is, before you request medical documentation like Smace suggests, weigh the credibility of the supv & father. Was the supv given notice of a need for accommodation & ignored it or did the supv perceive a disability (perhaps supv needs a refresher in ADA)? I lean to Marc’s response. If EE has already been termed and the documentation, supv feedback and info provided by father are not compelling, just document & close the file.

If you are willing to retain the EE and do an ADA accommodation, then request medical info, make sure the PD is current (including duties & expectations). She may make a dependable EE and have a positive effect on her life & your company. One caution, because EE’s suspension involved child discipline, your liability exposure may be higher.

Best of luck with your decision. Try to let us know how it’s resolved.

SMace

I'll add that you have been informed that this person has a disability. Does it meet ADA standards? How could she get through the interview? How can she work? If you do not get medical information you are only assuming the answers. We are not medical professionals. Just make sure you are willing to tell the judge and jury how you came up with your decision.

Toto

But was the company only informed after the termination? To excerpt a couple sentences from Anne Williams’ MLS report, (hopefully not out of context) “But you don’t have to be a mind reader. In most cases, the employee must actually request the accommodation or at least put you on notice that one may be needed.” I didn’t get that there was a request or notice before termination was made from the original post. That’s what Lori needs to clarify in questioning the supv. The interview and work may be moot points now. I see the question as "Did EE perform the essential functions of the position without accommodation prior to term and possible subsequent notification"?

I'm sure you know a few courts and the EEOC have unfortunately taken different positions on some ADA issues, which makes it more challenging for those of us on the front lines.

SMace

I see the question as "Did
>EE perform the essential functions of the
>position without accommodation prior to term and
>possible subsequent notification"?

No she didn't. She got fired. Was it the result of her disability and could she have been accomodated? I don't know.

I don't believe that firing her before the accomodation request makes it an open an shut case. What is the reason she did not ask for accomodation? Is it reasonable to now let her ask for one?

The answers to the questions may result in the term standing. I think you are on shaky ground to make decisions without exploring them.

It may go away, it may not. If it doesn't HR better make sure they dotted their i's.

Toto

I have to ask, Lori now that we have given you three various points of view do you feel even more unsure how to handle your original question “should we have accommodated by allowing him to help her understand and communicate her own employment issues?”

The positive thing about the forum is we all try to help each other avoid legal and costly mistakes. The down side is many times we're predicting outcomes with limited info and drawing conclusions based on our own specific experiences and knowledge.(Which in my case are baffling experiences and ambiguous knowledge and both can easily be discredited)8-}