Last week Sheryl Crow announced she had a benign brain tumor. Thankfully, she is fine. Her announcement made me wonder: What if one of your employees came in and told you they had a benign tumor? Are your managers familiar with what to do when they receive this type of information? Remember the following:
1. Don’t make any employment decisions based on the information you learn until the time is right. In the example above, if an employee somehow notified you that they had a brain tumor, don’t panic. They said benign, not much to do. But remember to ask why they are letting you know. For applicants, remember, under the ADA and some state statutes (such the Fair Employment and Housing Act “FEHA” in CA) you can only inquire into an applicants medical condition, including a medical exam, once an offer has been made and the approval of the medical information is the only contingency to the employment.
2. Engage in the interactive process. This is the most critical part of figuring out if your employee is a qualified individual and is protected under the law. I recommend starting from the point the employee is protected. Assume they can do the essential job functions as a starting place for the discussion. Chat about what the employee needs. Make sure the employee participates in the discussion – this means a two-way conversation. Document every conversation – no matter how short or incidental. Don’t forget to ask the employee all the ways they need assistance to get the essential job functions completed. Many HR professionals and managers get stuck on what they think the employee needs – just ask them. Remember, it’s the employee’s responsibility to understand his or her own physical or mental condition so they can provide the employer with restrictions that must be met to accommodate the request.
3. Accommodate, accommodate, accommodate. Most of the time, some type of accommodation is available. Think out of the box, be creative.
Another piece to the Sheryl Crow scenario to keep in mind is that many states – California is one, have broader protection than found under the ADAAA. For example, under FEHA, an employer’s duty to engage in the interactive process to reasonably accommodate extends to applicants and employees who are “regarded as” having a disability even they actually do not. If Sheryl or your employee says they are fine, but you have trouble believing it – watch out and stop yourself (and your managers) from treating the employee any differently than before you learned about his or her medical condition. However, the ADAAA puts no such requirement on an employer to accommodate someone who is simply “regarded as” having a disability.
Keep breathing when you learn an employee might have a disability and hum a few bars from Sheryl’s song about having fun.