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IF A DISABILITY IS INVISIBLE, DO EMPLOYERS NEED TO PROVIDE AN ACCOMMODATION?

QUESTION: I had an employee who started showing up to work late a lot. She called in one day and asked if she could work a different schedule, because she had trouble getting up because of some medication she was using. I told her she needed to come in as scheduled. She kept showing up late, and I fired her. A month later, she sued me for violating her rights under the Americans with Disabilities Act, saying I refused to give her a “reasonable accommodation.” She never said anything about a disability, and there didn’t seem to be anything wrong with her. Did I miss something here?

ANSWER: The Americans with Disabilities Act protects workers with disabilities, even disabilities that are hidden or invisible – those that have no outward manifestation. Invisible disabilities include chronic pain, depression, diabetes, heart disease, and sleep disorders, among others.

Under the Act, a disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities.” 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.

The statute requires employers to make reasonable accommodations “to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless … the accommodation would impose an undue hardship on the operation of the business.” A reasonable accommodation includes “job restructuring, part-time or modified work schedules, reassignment to a vacant position … and other similar accommodations.”

When the disability is not obvious, the employee has the burden of informing the employer of the need for an accommodation, either by disclosing to the employer that he or she is disabled OR by making a request for a reasonable accommodations, and informing the employer why he or she is requesting the accommodation.

The principal issue in your case seems to be whether the disability was known, or should have been known and whether your employee’s statement that she needed the accommodation due to some medication she was taking was sufficient to put you on notice that she had a disability. Case law on the questions is not clear.

Some courts hold that when an employee advises an employer of a medical condition of some kind and requests an accommodation, this triggers a duty on the employer’s part to inquire into the nature of the medical condition. Under the facts you describe, your former worker’s statement that she was having difficulty getting to work on time because of medication she was using could be viewed as requiring you to ask in more detail about the medical condition for which she was using the medication.

There are also cases that say the side-effects of use of a medication may constitute a disability, even when the underlying condition does not interfere with a major life activity. In these cases, the medication must be medically necessary and there must be no suitable alternative that is equally effective.

Your former worker might have met the legal standards for establishing a disability and requesting an accommodation, but for you to be liable under the ADA, she must also have been able to perform her job duties. If a disability renders an employee unqualified for a job, the employer is usually not required to accommodate the worker. For example, the employer did not have to accommodate a crane operator who lost his sight, or a high school teacher who lost her hearing. Even with reasonable accommodations, neither was able to meet the qualifications of the job.

Finally, you do not say what work your employee did. That is an important factor to be considered. An employer is not required to make accommodations that impose a hardship on the business. Allowing the office receptionist, for example, to work from 11 a.m. to 7 p.m. would not be reasonable for a business that needs someone at the front desk during business hours of 9 a.m. to 5 p.m.

If you have not already filed an answer to the lawsuit, you must do so within the time allowed. You should consult an experienced attorney who will help you evaluate the strengths and weaknesses of your case.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

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GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinntauriainenlaw.com