You have an employee named Bill who has been with the company for four months. A few weeks ago, his manager called to say that Bill had left work feeling uneasy and was in the break room. When the manager checked on him, he said Bill was fine and just needed a few minutes. HR asked the employee to follow up, but received no response. I received a call today saying Bill had called for post-traumatic stress disorder. I have always been ambivalent about whether I should provide accommodation paperwork if the employee doesn’t ask for it. Although he is not eligible for leave under the Family and Medical Leave Act, I believe both anxiety and his PTSD would allow accommodations for an American with a disability. do you want?
This article is part of the January 2023 print edition. Click here to subscribe.
This article is part of the January 2023 print edition. Click here to subscribe.
An employee who has only been with your company for four months is not eligible for protection under the FMLA, but is eligible for protection under the ADA from the moment you attempt to apply. Federal law states that only businesses with 15 or more employees must offer her ADA protection, but California law reduces that number to five.
So while he definitely qualifies for reasonable accommodation under the ADA, he’s not asking for it. maybe. However, the ADA law is tricky in that respect.
The law assumes managers and HR know it, but employees don’t. Therefore, the law requires you to act whether or not you knew or should have known that an employee needed accommodation. The ADA can cover anxiety and her PTSD, so she should go through the dialogue process with the employee even if she didn’t ask for it. Here’s what you need to do:
Check for faults.
Provide employees with ADA forms to submit to their doctor or therapist for completion. You can trust Bill’s statement that he has anxiety and her PTSD without taking him to the doctor, but I recommend getting verified.
Run an interactive process.
It may sound formal, but it could just be a conversation. A doctor or therapist should be able to tell you what your employee needs, but you don’t have to do exactly what the doctor says or what the employee wants. The goal is to go back and forth to find solutions that work for both the employee and the company.
Employment attorney Jeff Nowak, author of the blog FMLA Insights, suggests starting the interactive process with the question, “How can I help you?” Your goal is to help Bill succeed in his job. It’s not a battle you’re trying to win. Ask, “How can I help you?” Set the right tone for your meeting.
Nowak also suggests doing adjustments if they are easy to implement. So an employee will come to you and say, “I have terrible back pain. Do you have a standing desk?” . And you get it. Problem solved. You’ll be amazed at how many simple accommodations you can find without having to attend a boring meeting.
Even with mental health issues, you might think the solution is easy. He takes 15 minute breaks when needed, puts a “rearview mirror” in the cubicle to keep nobody sneaking up behind the employee, flips the desk over so the employee’s back is facing the wall, etc. , all have an effect.
Accommodation must be reasonable. Employees may say that working remotely is best for their mental health. If your business runs a warehouse and your employees need to be on the floor, that’s not a reasonable request.
It always goes wrong on the part of the accommodation. Also, never fire an employee without consulting an employment attorney. Law can be tricky and you don’t want to make a mistake that costs your business hundreds of thousands of dollars.
However, don’t panic about this. Approach employees with paperwork and a smile. Remember that both have the same goal.
follow up.
Be sure to follow up once the business approves and installs the accommodation. It may require mediation between the manager and the employee, or between the employee and a colleague who doesn’t understand why Bill is taking her 15 extra minutes break. Keep your medical information confidential, but be careful that no one retaliates for getting the help Bill needs to succeed.
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