HR SPECIALISTS ALERT: DISABILITY LAW IS EVOLVING FOR YOU

Suppose a manager calls HR one morning to report that one of her probationary employees has refused to perform a certain function of the job by the established due date and the manager wants to fire the guy. When you ask why the employee refused to do it, the manager claims the employee’s doctor has ordered her not to do the kind of work required to complete the task while he recovers from surgery. She also made it very clear that the employee has not asked for a reasonable accommodation. What is your next move? If it is to start drafting the termination letter, you have not been following developments in the ADAAA disability law. There is at least one federal circuit court of appeals opinion that suggests employees do not have to specifically ask for an accommodation if the employer knows enough about a situation to see that a performance problem is likely related to a disability. One decision does not make it the law of the land, but it does substantially increase the risk that you might be making a big mistake. We will hear more about this evolving HR obligation, but for now check out a new blog posting from OgletreeDeakins law firm entitled, “The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?” and its predecessor. As for those folks on the union side of the table this case might mean that if a member has been disciplined or adversely impacted by an inability to do something and that inability was based even in part on a disability management knew about you might have a decent ADA claim to file.