Invisible Disabilities: What Do You Do When You Don’t Know What You Don’t Know?
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
Most employers understand that, pursuant to the Americans with Disabilities Act, they must try to reasonably accommodate an employee with a “disability” so that the employee can perform the essential functions of his job. But suppose one of your employees is failing to meet the requirements of his job because he has a disability that you know nothing about – a so-called “invisible disability”? What then?
As is so often the case, it is much easier to state the answer to this question than it is to apply the answer in the real world: an employer’s ADA responsibilities are triggered when an employer is on reasonable notice of an employee’s disability. Once that happens, an employer must begin an “interactive dialogue” with the employee in the effort to develop a workable accommodation.
In most situations, this issue does not arise. Employees generally volunteer the fact that they need help, often as an explanation for job performance issues. In other situations, the employee’s disability will be in plain view, as when the employee is limping, wearing a cast, is dizzy or disoriented, and so on – there is no argument about whether the employer had “reasonable notice” of the problem in those kinds of cases.
But what about a situation where an employee who is supposed to be at his desk taking calls and processing orders takes three or four additional and lengthy “bathroom breaks” each day. Or suppose an employee begins angrily confronting co-workers and disrupting the workplace, to the point where other employees cannot get their jobs done. Or suppose a shop employee starts missing crucial deadlines.
In these kinds of situations, the employer does not know that the employee’s performance issues arise from a disability, as opposed to the myriad of other reasons (some more creative than others) why employees do not do their jobs. Frequently, the employer only finds out that the employee suffered from some form of disability when it’s too late, after the employee files a claim.
But the question is not whether the employer did know. The question is, did the overall circumstances put the employer on “reasonable notice” of a potential disability, even if that disability is effectively invisible? If the employer should have been alerted to the potential that the employee’s problem was, as likely as not, the product of a condition that would require frequent bathroom breaks (Crohn’s disease, bladder infection), or that causes mood swings or emotional outbursts (bi-polar disease, adverse reactions to certain medication), or that compromises the ability to do physical work (osteoarthritis, Lyme disease), the employer has the obligation to begin the interactive dialogue that the ADA requires.
The obvious problem is that there is no bright-line definition of what is “reasonable” – which is why there are judges and juries. Based on the same facts, one judge or jury might find against you and one might find for you, or one lawyer might be able to win while another loses. Employers seeking to limit potential liabilities, therefore, must err on the side of caution.
There are strategies to deal with these kinds of workplace issues. They are not foolproof, but they can dramatically reduce your exposure. Here are some of the fundamentals as to how employers should approach these situations – situations where they don’t know what they don’t know:
- Is the employee’s behavior out of character? When a long-term, reliable employee engages in conduct that is uncharacteristic and otherwise inexplicable, that may provide reasonable notice that the employee is suffering some form of disability. Keep your antennae up for that kind of fact pattern.
- Except in extreme situations, use progressive discipline. Progressive discipline, as opposed to a one-strike-and-you’re out termination, gives the employee an opportunity to disclose whether he or she has a disability. Judges and juries will look on an employer much more favorably if the employer provided this opportunity to an employee, and the employee did not take it.
- Ask the magic question. Particularly in the context of an underperforming employee, ask whether the employee needs some sort of accommodation in order to perform his or her job. If the employee says anything other than no, begin the interactive dialogue the law requires (and unless you are very well schooled in that requirement, get help). If the employee does not open that door, and if there is no reason to believe that the employee lacked the capacity to engage in a rational dialogue (for example, where a serious mental issue may be behind the employee’s behavior), you will generally be off the hook.
- Don’t step over the line. Do not, however, delve into the details of the employee’s physical or emotional condition. Focus on the “how can we help you do your job” question, and not the “tell me more about your condition” question. There will be some overlap, but if you step too far over this line, a court may find that you were more interested in discriminating against the employee than in finding an accommodation for the employee.
- Document, document, document. It’s not enough to do the right thing unless, ultimately, you will be able to prove you did the right thing.
- There is no way around this: you must train all management-level personnel so that they know how to spot ADA issues, and so that they know how to respond appropriately. Knowledge is only power if you know what to do with the knowledge.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.