Here’s the situation: A good friend, we’ll call her “Jane,” was hiring for an entry-level sales position about a year ago. She interviewed a candidate who was friendly, articulate, had a steady work history and seemed to be perfect for the job.
After a few weeks of training, employees in her training class and the instructor expressed some concern that the individual was slightly “off.” No one could pinpoint exactly what was wrong, so she remained in training and on course for employment.
About six months later, HR began receiving complaints about the new employee’s strange behavior. Among the various complaints, she had been seen talking to herself in the hallways and break room. Other complaints explained how she was spending an excessive amount of time in the bathroom, having hour-long conversations with herself in the mirror.
Jane contacted Employee Health and the employee was removed from the workplace after going through a complete mental health evaluation.
Though the situation was rather strange and unfortunate, it also brought up some legitimate legal concerns, specifically regarding the Americans with Disabilities Act (ADA):
- What are the ADA consequences if you hired someone and then discovered this behavior on day two? Can you dismiss them?
- Do ADA accommodation requirements come into play? Is there a time frame? Or is it from the moment of hire? What about before the hire?
- If she was otherwise best qualified, can you refuse to hire solely based upon her mental illness?
We ran Jane’s situation and our ADA accommodation questions by the G.Neil legal team to get a better understanding. Generally speaking, here’s what employers should know:
The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. To be protected from employment discrimination under the ADA, the employee must be disabled (as defined by the ADA) and qualified to perform the essential functions of the job, with or without reasonable accommodation. Disabilities recognized by the ADA may be mental or physical.
Qualified means two things - first the employee must satisfy your requirements for the job, such as education, employment experience, skills or licenses. Second, the applicant or employee must be able to perform the essential functions of the job with or without reasonable accommodation.
If the disabled employee is considered disabled as defined by the ADA and can perform the essential functions of the job with/without a reasonable accommodation, the employee is protected under the ADA and cannot be terminated or not hired solely because of his/her disability.
Reasonable accommodations can include nearly anything, depending on the individual's disability. Examples of common accommodations include:
- Making existing facilities readily accessible to and usable by individuals with disabilities
- Job restructuring or reassignment to a vacant position
- Acquiring or modifying equipment or devices
- Adjusting or modifying examinations, training or policies
- Providing qualified readers or interpreters
- Modified work schedules or leaves of absence
Employers are not required to provide an accommodation that would cause the business an "undue hardship." Undue hardships usually occur when an accommodation would cost too much (based on the company's resources) or would substantially interfere with business operations. This is a legal determination that must be made on a case-by-case basis by the company human resources department and/or legal counsel.
An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The individual does not have to mention the ADA or use any "trigger" words like "reasonable accommodation" to begin the process. Instead, he or she only has to give you enough information to alert you to the fact that he or she needs an adjustment because of a medical condition.
Requests do not need to be in writing or take any particular form; however, you should have individuals make the request in writing so that the information is documented for future use.
Generally, it is the disabled individual's responsibility to alert you to the need for any accommodation. You are not required to accommodate any disability you do not know about. However, you may initiate the accommodation process if you have noticed a change in the ability of a person with a known disability to perform the job.
The definition of disability was expanded under the new Americans with Disabilities Amendments Act (ADAAA). G.Neil’s updated ADA Facts Sheet is a simple resource to help explain the most recent ADA changes, the process for requesting accommodation, what qualifies as reasonable and more. The ADAAA went into effect on January 1, 2009, read more on how the changes affect your business.
What would you have done in Jane’s situation? Are there any other legal issues that would affect your decision?