ADA: is this a request for accommodation?
CarolL1999
55 Posts
Our employee of about six months is in a job that requires that his hours occur mostly during our business hours, 9 - 5. It's an IT job but one that requires he interact with others in IT, and they are all here during business hours..
Not too long after he started he fell into arriving way late (after lunch) and working 8 hours from then. He also had an instance where he did not show up for work and did not call in. When he did show up, his supervisor met with him to inform him that was unacceptable. He mentioned that he had a diagnosed sleep disorder (I have found references to it on medical websites) in which he doesn't fall asleep until early morning and therefore has trouble waking up to get here by 9 or 10.
He has recently repeated his "not showing up" behavior and his supervisor is now ready to give him a written warning. I have told her to proceed with the process but need some advice on how to handle a possible ADA situation. What is our responsibility here? Do we need him to make a specific request (he may not know he can) or can we (and should we) lead him in this direction? I assume we need to do this now that we "know" he has a disorder, and that we need to follow a process for documenting the disorder via his physician, and considering the request.
Not too long after he started he fell into arriving way late (after lunch) and working 8 hours from then. He also had an instance where he did not show up for work and did not call in. When he did show up, his supervisor met with him to inform him that was unacceptable. He mentioned that he had a diagnosed sleep disorder (I have found references to it on medical websites) in which he doesn't fall asleep until early morning and therefore has trouble waking up to get here by 9 or 10.
He has recently repeated his "not showing up" behavior and his supervisor is now ready to give him a written warning. I have told her to proceed with the process but need some advice on how to handle a possible ADA situation. What is our responsibility here? Do we need him to make a specific request (he may not know he can) or can we (and should we) lead him in this direction? I assume we need to do this now that we "know" he has a disorder, and that we need to follow a process for documenting the disorder via his physician, and considering the request.
Comments
ADA issues are defined as a physical or mental impairment that substantially limits one or more of the individual's major life activities. A mitigating measure (i.e., medication or a device that improves an impairment) must not be considered when determining whether an impairment is a disability.3
"Major life activities" include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
It may be ADA related. However you do not indicate that you have sent the EE for medical evaluation concerning his condition. Walking in one day and announcing that he has a sleep disorder may put you in an interactive dialog position but you do have the right to get medical certification as to what the actual condition is. How it will affect his work. What accommodation would be needed and if that accommodation is reasonable.
The EE does have responsibility to making a request in an interactive process concerning an accommodation. But the cart is before the horse until you get medical certification.
Do not be too hasty here. Be sure you are on firm ground before you discipline the EE. On the other hand even if disabled an EE has to be able to fulfill the essential job duties. If you have an employment attorney I would consult them about this.
I have not had anyone not cooperate with an ADA-AA interactive process or fail to get a medical certification. It is in their best interest to cooperate with the process.
An EE has obligations under ADA to become involved in the process. An EE that refuses to get medical certification may be treated as unqualified under ADA.. Since you do intend to speak to your attorneys, this is a really good question to pose as well.
Hope I've helped in some small way.
Well, a new wrinkle. My employee gave his notice to accept another job where he has the kind of flexibility in work hours that he was looking for. This was before I had the chance to begin the conversation about ADA eligibility. On the one hand, I think this is probably the right outcome for him. On the other hand, I hope I don't wind up being the punchline to one of those case studies we read about in our HR newsletters! I at least have witnesses that we were about to start the conversation, anyway.
I'm having breakfast with my employment attorney next week so I'll get to ask him my questions. Thanks, Cappy, for your help.