Her name was “Sami” and she compulsively wrote notes documenting things that were not true. I served as the company’s HR On-call advisor and saw her as both a talented employee with a mental disability who deserved accommodation and a clear and present danger to the CEO who she targeted.
When she gave me the first sheaf of documentary notes outlining off-color statements she alleged the CEO had made, I investigated. Although she alleged others had witnessed many of these statements, each person interviewed denied hearing anything that resembled what Sami claimed. Many interviewees, however, described behaviors that led me to suspect Sami needed professional help. During the four days I spent investigating the first complaint, Sami filed three other complaints, all against the CEO.
After the investigation, I met with Sami and she wrote notes the entire time I spoke. When I asked what she wanted the notes for, she told me she planned to give them to her attorney. I gave her my card and said, “Please let your attorney know he or she can call me.” I also asked Sami if we could meet to discuss any accommodations she wanted. Sami then pulled a Smartphone from her pocket, hit record and asked, “What makes you think I need an accommodation?”
According to Alaska State Commission for Human Rights attorney Marie Kyle, “The scenario involving Sami presents a tricky issue because employees with disabilities have two important legal rights which at first may seem somewhat contradictory. On the one hand, they have the right under both state and federal law to reasonable accommodations, which are modifications or adjustments to their work environment that enable them to perform the essential functions of their job and enjoy equal access to benefits available to other employees.”
As a result, employers have an affirmative obligation to engage in an interactive process with an employee whose disability is obvious or otherwise known to the employer—regardless of whether the employee requests an accommodation. Sami’s compulsive note-taking and allegations with no merit alerted me that she might have a mental disability creating workplace difficulties, but what if my checking into this led me to infringe on Sami’s other rights?
In addition to their right to reasonable accommodations, employees with disabilities also have the right not to disclose their disability to their employer. According to Kyle, “there are only a few circumstances in which an employer is allowed to ask medical questions, including when an employee requests an accommodation and when there is objective evidence that an employee may be unable to perform their essential job functions or may pose a safety risk to themselves or others.” I needed to tread carefully when asking questions that might illicit information regarding Sami’s apparent medical condition.
Kyle cites Equal Employment Opportunity Commission (EEOC) guidance outlining that an employer may only ask if an employee needs an accommodation when it reasonably believes that the employee may need an accommodation and the employee has a known disability—either because the disability is obvious or because the employee revealed it. “Because mental disabilities are often less obvious than physical disabilities,” says Kyle, “it isn’t clear that Sami has a known disability. The law requires more than a subjective belief.”
At the same time, says Kyle, “EEOC guidance also states that an employer should engage in the interactive process—even without being asked—if it knows that an employee has a disability and knows or has reason to know that the employee is experiencing workplace problems because of the disability and that the disability prevents the employee from requesting a reasonable accommodation.”
In other words, employers need to walk a fine line and if you’re unsure, consider consulting an attorney or an HR specialist.
© 2018, Lynne Curry
Lynne Curry writes a weekly column on workplace issues. She is author of “Solutions” and “Beating the Workplace Bully” and founded The Growth Company, an Avitus company. Curry is now a Regional Director of Training and Business Consulting at Avitus Group. Send your questions to her at Lcurry@avitusgroup.com, follow her on twitter @lynnecurry10 or at www.workplacecoachblog.com.