The Americans with Disabilities Act (“ADA”) requires employers with 15 or more employees to make reasonable accommodations for employees with disabilities, unless it would impose undue hardship on the business operations. The duty to engage in the interactive process under the ADA is triggered when an employee requests a reasonable accommodation and also when an employer has reason to believe an employee may need an accommodation due to a disability in order to do the job. (Businesses with at least 8 employees are subject to the Tennessee Disability Act and while that Act does not specifically require reasonable accommodation, it does prohibit discrimination on the basis of disability.)
A request for accommodation doesn’t always come in a clear letter from an employee or physician identifying the employee’s disability and specific need. Consider the case of EEOC v. Dollar General (3:14-cv-00441) where the 6th Circuit Court of Appeals recently upheld a jury award from the District Court in Knoxville against the employer of almost $300,000 in damages (plus attorney’s fees) because the company fired the employee instead of allowing her to keep a bottle of orange juice at her register to ward off diabetic episodes. Her need for an accommodation was rejected by at least 3 managers, who made no attempts to engage in the interactive process as required under the ADA.
Often, there is no direct communication that an accommodation under the ADA is needed but the employer may have reason to know of such because of an employee’s known or apparent impairment. Rather than asking the employee directly if they need an accommodation, or have a health problem that is affecting their job performance, a better way to address the subject is to tell the employee that it’s been noticed that they are having issues with X and “Is there something we can do to help?” The bottom line here is that most employers must have a clear and comprehensive anti-discrimination policy, and where applicable, a written disability accommodation policy, and managers must be thoroughly trained to understand these policies and the company’s obligations.