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Nov29

Unable to perform some job duties

I have an employee who is deaf and recently legally blind. We had the Center for the Blind come in and help make accommodations to help her do her job duties. Some of the tools we purchased and some they supplied. Her job is computer/data entries, reviewing invoices, ordering supplies and answering phones. I noticed that she is not using most of the tools that were given to her and still makes mistakes because of it. I think her eyesight has gotten worse over the past 6 months but she has not asked for any more tools to help do her job. Can we ask for her to go out on disability? The company pays for short term disability for all employees.

Requesting or forcing an employee to take a personal leave to manage their medical condition is usually not advised unless the employee poses a safety risk to himself or others. Doing so increases the risk of discrimination claim against the employer especially if the primary reason for the request is due to the employee’s disability or medical condition.

The federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Employers with 15 or more employees are covered under the ADA.

The ADA requires employers to utilize an interactive process to determine the appropriate reasonable accommodations that will an enable an employee with a disability to perform the essential functions of his job.

It sounds like you’ve taken steps to provide reasonable accommodations for the employee to perform her job duties. But, was the employee involved in the process of determining what accommodations were provided? Yes, she was provided with tools but was she actually involved in the decision as to which tools were provided to her?

It’s important to provide reasonable accommodations to the employee but it’s equally important to engage the employee in the decision making process as to which accommodations will best allow her to perform her job functions. By taking a good faith role in the interactive process the employer is less likely to be held liable if the employee refuses to participate in the process or fails to use the accommodations provided.

Also, you state that even though you believe her eyesight is getting worse, she hasn’t asked for more assistance to perform her work duties. Remember, employers have an obligation to be proactive in assessing the need for reasonable accommodations under the ADA. Thus, if the employee’s performance is concerning, you must address the performance issues and, in doing so, discuss the need for further accommodations.

Again, involving the employee in the process of determining reasonable accommodations significantly reduces the risk of a discrimination claim or violation of the ADA. Remember to document all communications regarding the matter.

It’s acceptable to inform the employee of her eligibility for a leave of absence under federal or state law or company policy/practice. However, the employee shouldn’t be pressured or forced to take such a leave unless, as previously stated, she poses a safety risk. She can be provided the necessary information and even encouraged (in a supportive way) to take the leave to address her condition. Keep in mind, any perceived pressure to take a leave of absence, especially one that is unpaid or reduces the employee’s income, can be construed as a negative, discriminatory employment action against the employee because of her disability.

This entry was posted on Sunday, November 29th, 2015 at 8:47 pm and is filed under
Labor Laws.
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