Performance Problem + Disability = Request for Accommodation?

Federal law and court decisions under the Americans with Disabilities Act have long held, in general, that an employee must request an accommodation for his or her disability before the employer has a duty to explore accommodation options.

But recent case law and updated EEOC regulations make clear that when an employee identifies a disability as a cause for his or her performance problems, the employee has put the employer on notice of a possible need for an accommodation. This triggers an employer’s duty to engage in an interactive process with the employee to determine whether the disability can be reasonably accommodated.

In Thomas v. Bala Nursing & Retirement Center (E.D. Pa. 2012), for example, a nurse defeated summary judgment when she communicated that her attendance problems were the result of severe fatigue caused by anemia, but did not explicitly ask for a reasonable accommodation. The federal court held that the notice requirement for an accommodation under the ADA is met when the “employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for the accommodation.”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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