The ADA defines a wide variety of disabilities, some of these such as dyslexia may not be immediately apparent to the employee. As an employer or manager of someone who exhibits qualities covered under the ADA, is there a proper way to request they get tested to best accommodate their needs?
By Dr. Di Ann Sanchez, SHRM-SCP, SHRM – SHRM Diversity Panel Expert/DAS HR Consulting, LLC
The ADA (American’s with Disabilities Act, as amended) defines a wide variety of disabilities, and some may not be immediately apparent to employers. Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that s/he has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a significant life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if s/he has a history of a disability (such as cancer that is in remission).
- A person may be disabled if s/he is believed to have a physical or mental impairment.
Disability discrimination occurs when an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because of a disability. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
An employer may ask job applicants whether they can perform the “essential functions of the job” and how they would perform the job, with or without reasonable accommodation. Employers should ensure that all employees have a job description that outlines the “essential functions of the job.” The “essential functions” are the most essential job duties, the critical elements that must be performed to achieve the objectives of the job. Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition. Furthermore, the employee is not legally required to tell their employer about their disability, unless there is a risk to the employee or others.
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability unless doing so would cause significant difficulty or expense for the employer (“undue hardship”). If a manager believes an employee has a disability, and the employee has not disclosed a disability, the manager should not ask about the disability. Job descriptions, including the essential functions of the job can assist in employee and employer dialogue (“interactive process”) regarding disabilities so the employer can make the appropriate accommodations. These job descriptions can also communicate the employer’s performance expectations of the position.
My Human Resources Advice:
Example: An employee does not disclose his Dyslexia, even when he begins having performance problems that he believes are disability-related. His manager counsels him about the performance problems (job description), but they persist. The manager warns that if his work does not show improvement within the next month, he will receive a written warning. At this point, the employee discloses his disability and asks for reasonable accommodation.
The manager should discuss the request and how the proposed accommodation (“interactive process”) will help improve the employee’s performance. The manager also may ask questions or seek medical documentation that the employee has a disability. The manager does not need to rescind his oral warning or his requirement that the employee’s performance must improve. However, delaying one month to evaluate the employee’s performance pending a decision on his request for reasonable accommodation will enable the employer to assess the employee’s performance accurately.
The Equal Employment Opportunity Commission (EEOC) has provided guidance to employers who may experience employee performance concerns. The EEOC offers examples and scenarios when an employer can properly raise the issues of an employee’s disability as part of a performance or conduct problem. The Americans with Disability Act: Applying Performance and Conduct Standards to Employees with Disabilities is the resource for all employers when dealing with employees and their performance.
