Providing An Accommodation Is Not “A Shield From Criticism”

In yesterday’s “Work Friend” column in The New York Times, “Anonymous” writes to columnist (and acclaimed author) Roxane Gay complaining that a direct report’s chronic health condition causes unpredictability in attendance and inconsistent performance.

Anonymous writes that HR supports and works with this employee. (Yay HR!)

But Anonymous is frustrated because when trying to provide feedback on a performance issue, the writer worries that it will seem they are penalizing the employee for their ill health. Anonymous also seems annoyed by the “chaos and stress” caused by the employee’s absence during flare-ups, and that the employee does not appreciate the accommodations already provided.

OK. So much to unpack here. Where to start?

Providing Accommodations To An Employee With a Disability Is NOT A FavorIt’s Legally Required

Roxane aptly recognized that Anonymous needed to reframe their thinking. She responded

…you aren’t doing them a favor when you provide accommodation. You are following the law… .

Three cheers for Roxane Gay! That’s exactly right.

The law in question is the Americans with Disabilities Act (ADA) and state human rights laws, which require employers with a certain number of employees (15, for the ADA, and usually far less under state laws) to provide a reasonable accommodation to a qualified employee with a “disability” that substantially limits one or more major life activity(ies) or has a record of a disability.

A “qualified” employee with a disability possesses the skill, experience, and education to do the job and can perform the essential functions of their position with or without an accommodation.

reasonable accommodation is just a change in the way duties are performed to help a disabled employee perform their job duties or enjoy the benefits and privileges of employment.

If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” i.e., a significant difficulty or expense for the employer given its size, financial resources, and the needs of the business.

It is not a favor bestowed upon the employee. It’s a legal obligation.

Image by Pexels from Pixabay

How Does An Employer Know What Kind of Accommodation An Employee With A Disability Needs?

Critical to compliance with the ADA, employers must engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide. Engaging in the interactive process is an ongoing duty.

Conversations about performance should be documented by email with the employee in summary.

Roxane is equally right when she said “[A]n accommodation is not a shield from criticism.”

Absolutely true.

Managers can still evaluate an employee’s performance the same as they do other employees’ performance.

However, EEOC guidance informs employers that when discussing performance or conduct problems with an employee who has a known disability (like Anonymous’s direct report), a supervisor or HR can ask if that employee needs a reasonable accommodation. Or a different accommodation. Or an additional accommodation.

The bottom line is this: an employer may criticize performance and provide negative feedback to a disabled employee.

Remember to Document Such Conversations.

Critically, the manager, supervisor, HR person, or whomever is talking with the ill employee should document conversations about a performance or conduct problem, or they are asking for a lawsuit.

Management should document the interactive process too. You have certainly heard me say that before!

Whether we’re talking about poor performance, attendance, tardiness, or following company policies, a talking-to is not enough. The employer rep must document these conversations—and they should do so in real time—providing objective factual statements and the nature of the conversation.

Avoid judgments. Avoid implicit bias about what an employee with a chronic condition can or cannot do.

And, please, please document.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.