RESPONSE: Assuming that you have already chosen this applicant as the most qualified person for the position, you would review the job description to identify whether answering the phones is an essential function of the job. In this case, it is a marginal duty for a secretary (the receptionist has main responsibility for answering the phones), and you may not be able to require the applicant to come in at 8:30 given that she is requesting an accommodation. Since she initiated the disclosure, you can ask her why she needs to come in at 10:00 so that together you can open a discussion to identify accommodations that will work for both of you. You might also ask if there are any other accommodations that she will need in order to do the job. You may ask her to provide documentation of her disability and need for accommodation if you feel you need this information. Begin to develop a collaborative, problem solving relationship with this employee to set the stage for a good working relationship with this employee. Free technical assistance and advice can be obtained by contacting the Job Accommodation Network at (800)526-7234 for help in identifying reasonable accommodations.

You supervise an auto mechanic who is making a lot of mistakes - not changing the oil when asked to do so, installing parts backwards, misdiagnosing car problems and making unnecessary repairs. You suspect that he is having emotional problems, but he has never anything to you directly. You have given him reminders, verbal warnings about his mistakes and taken extra time to help him correct his repairs. You have just told him that he is being fired when he tells you that he has an anxiety disorder and is taking medications. Do you have to keep him on the job because of this disclosure?

RESPONSE: In most cases, an employer who has taken reasonable measures to give feedback, clarify job responsibilities and follow good management practices would not be required to keep an employee who waits until after being told he is fired to disclose disability. The ADA protects qualified employees who have notified the employer about the disability; that is, people who are able to perform the essential functions of the job with or without reasonable accommodations. This employee did not volunteer the information until it was too late, and the employer was not aware of the disability or need for accommodation prior to taking this action. The employer does have the right to expect all employees to be able to do the job for which they were hired. The Key Bridge Foundation at (703)528-1609 has a Mediation Training and Information Center for the ADA which maintains a list of mediators trained to handle ADA issues to help you resolve this type of issue with the employee.

You have an employee who has told you about his mental illness. He has been getting into loud arguments with other employees in the last few weeks. Prior to this, his work performance was good. You are worried that he is going to hurt someone, although he has not physically threatened anyone or caused bodily harm, he has just gotten into loud arguments. How would you handle this situation with the employee?

RESPONSE: Approach the employee privately and ask him how things are going for him on the job or how he has been getting along with other employees. Share your observations that he has been heard in loud conversations with other employees. Ask if there are any ways that you can help resolve these issues, while at the same time clearly describing the expectations for behavior and safety in the workplace that all employees must follow. Reinforce how your job is to ensure good working conditions for all employees to do their jobs. Offer to help the employee to find resources to help him with any personal problems that he may be having (such as referral to your employee assistance program or coordination with his doctor), especially since you value the good work that he has done for you.

Legally, you cannot terminate this employee based upon the assumption or concern about direct threat to himself or others if there is no recent evidence of physical harm or threats. Consult the EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities for more information about the direct threat standard (available from the EEOC at 800-669-3362, your local ADA Disability and Business Technical Assistance Center at 800-949-4232 or online at the ADA Document Center) or call the Job Accommodation Network at (800)526-7234 for free technical assistance.

Please note that these scenarios do not constitute legal advice. Each situation is unique and employers should consult their legal resources about their particular situations and recommended actions.

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