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April 20, 2014

“Why Does She Get To Do That?” Handling Questions about Employee Americans with Disabilities Act (ADA) Accommodations

The Americans with Disabilities Act (“ADA”) requires any employer with fifteen or more employees to provide reasonable accommodations to individuals with disabilities, as long as doing so does not result in “undue hardship” to the employer. A reasonable accommodation can be any change in the work place that helps a person with a disability to enjoy equal employment opportunities. The ADA has very strict guidelines about when and how an employer may inquire about an employee’s disability. What happens, though, when a non-ADA employee asks you, the employer, why another employee is receiving perceived preferential treatment?

The ADA strictly prohibits employers from disclosing medical information about employees, but even if privacy rules are adhered to, some accommodations will be obvious to others. For example, consider these situations:

  • A diabetic employee takes more scheduled breaks than others so that he can eat small meals.

  • An employee with temperature sensitivity is allowed to wear a modified dress code.

  • An employee who experiences seizures is receiving a service dog and, as a result, she must leave work to train with the animal for two weeks.

Obvious accommodations that are incorrectly viewed as “special treatment” can lead to an uncomfortable work environment. An ADA-employee may choose to disclose their disability and accommodation(s) with their co-workers, but if they do not, an employer needs to know how to handle the situation.

If confronted with a question about an ADA accommodation, you should generally inform the inquiring employee that you have policies in place for those who may face difficulties in the office. You should not disclose who the person experiencing the disability is (even if it is obvious) or what the disability is. Emphasize that the business, and employees, must respect the privacy of every employee.

In addition, consider what you can do before inquiries start. Although employers are not under an obligation to explain the ADA to employees, it could be beneficial to outline the Act in your employee manual. By doing so, you will help employees become familiar with its rules and regulations. Training is another way to educate your work force. If employees know disability information is confidential, they will be less likely to ask.

You can also designate in your handbook who an employee should speak with in the event an accommodation is needed. Employees may feel as though they have to share their need with the boss, but it is a smart policy to have employees instead discuss the issue with an HR manager or department. HR personnel should be more familiar with the ADA and its requirements. If needed, the HR personnel can then share the information with necessary parties.

The ADA safeguards fairness for all in the work place. By knowing how to discuss the topic appropriately and lawfully, you will ensure that no employee feels slighted by another’s reasonable accommodation, as well as protecting the privacy of the employee requiring the accommodation. As with all employment issues, if a question arises which you or your HR professional is unsure how to answer, contact legal counsel before you act.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Preston Clark Worley, Labor Law Attorney, McBrayer Law Firm
Associate

Preston Clark Worley is a native of Richmond, Kentucky and proudly calls Central Kentucky home. After graduating from the University of Kentucky and the University of Kentucky College of Law, he joined McBrayer Law Firm as an Associate in 2010. He enjoys a diverse practice in several areas of real estate, transactional, litigation and administrative law. Mr. Worley has represented his clients by brief or in person before various trial courts throughout the Commonwealth and the Federal Eastern District of Kentucky, the Kentucky Court of Appeals, the Kentucky Supreme Court, Executive and...

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