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ANALYSIS AND REVIEW: WHAT DO YOU THINK? -- SEPTEMBER 2003
Our September 2003 WHAT DO YOU THINK? dealt with a common and legally-dangerous workplace situation – what can you do, and what must you do, in respect to an underperforming employee who might have a disability, but isn’t complaining about it, and is still doing his job? Do you reach out? Do you leave him alone? Do you contact him through an intermediary?
Here are some of your responses. Thanks to all who provided us with their view.
“Make sure a complete physical examination is performed to get to the bottom of the health problem.”
“I would approach the employee and discuss his current health situation with him "AND" his financial status to determine if he could be placed on a part-time status in a different position.”
“I would ignore situation until he comes to me. He obviously is still able to do his job. He knows what his limits are better than I would.”
“Mind your own business.”
“If the person is performing their job in an adequate fashion and their health has not had a negative impact upon their job performance you should not approach the individual or any of your other employees. However if this is a true observation and the person truly appears ill and you have a friendly relationship with the employee you can make an inquiry to them regarding their health. The employee could welcome your concern or not.”
“If one of my employees were in declining health...Although he continued to work without complaining. I would feel he or she is continuing for fear of losing a job for taking to much time off. I would speak with that employee and suggest that they seek proper medical attention and take the necessary sick time off. So that perhaps if lightening the load is necessary, maybe the person can be placed in another position.”
“You’re not a medical person, wait for him or her to come to you.”
So, what’s the “right” answer?
According to the guidance offered by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act, there is a basic rule all employers must follow: The ADA strictly limits the circumstances under which you may ask questions about an employee's disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition. However, you must be careful not to discriminate against a qualified person with a disability based on myths, unsubstantiated fears, or stereotypes about that person's ability to safely perform the job. The harm must be serious and likely to occur -- not remote and speculative.
In our scenario, since the employee currently is able to perform the essential functions of his job, the employer would not be allowed to require a medical examination. Those who responded by suggesting that the right course was to “make sure” a physical examination was performed would have violated these restrictions. If the employee's health worsens and the essential functions of the job are not met and/or there is a serious and objective safety concern, then the employer can require the medical exam. At this point, the employer would also be free to engage the employee in conversations.
During the "interactive process" that is to result once this threshold is crossed, the employer and employee should talk about available and appropriate accommodations, and explore viable options. But remember that an employer may not require a qualified individual with a disability to accept an accommodation. If, however, an employee needs a reasonable accommodation to perform an essential function or to eliminate a direct threat, and refuses to accept an effective accommodation, the employee may not be qualified to remain in the job.
In addition to possible ADA concerns, the employee in our scenario may also be entitled to protection under the Family and Medical Leave Act (FMLA). A recent decision in an FMLA case suggests that employers that are aware of an employee’s sudden changes in behavior or levels of productivity may be required to give the employee FMLA leave. In the case of Byrne v. Avon Products, Inc., 328 F.3d 379 (N.D. Ill. 2003), a highly-regarded employee began sleeping on the job. The Court noted that given the sudden change in the employee's behavior, the employer was on notice of the employee's need for FMLA leave.
If the employer has wellness services which it regularly offers to all employees (e.g. work life programs, free health checks, etc.) the employer can certainly avail those services to the employee in our scenario, provided that the employee is not singled out in a negative or discriminatory manner or pressured to take advantage of them.
Bottom line: There is no one “right” answer, but there are some approaches that are much less likely to lead to problems than other approaches. As always, let us know if we can help.
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