Today I was advised that an employee told one of his coworkers that he was sorry for working slow on a project; his explanation was that he has a blood clot in his leg and takes blood thinners. We are concerned about his safety and his ability to continue to perform his work. He does building maintenance and landscape work. What approach should we use and what do we have a right to ask? Can we ask for something from his physician identifying his medical condition or any limitations he may have?
Thank you for your inquiry regarding approaching an Employee regarding a potential health concern.
For purposes of this inquiry, we will assume that your workplace is covered by the Americans with Disabilities Act, which applies to private employers with 15 or more employees. Additionally, note that the comparable, yet somewhat broader, California Fair Employment and Housing Act (FEHA) also applies to private California employers with five or more employees. Both of these laws protect employees from discrimination on the basis of an actual or perceived physical or mental disability or Medical condition and must be followed when handling this situation.
Keeping these laws and their protections in mind, there are situations in which an employer may directly ask an employee about a medical condition or impairment; however, these situations are not only limited, but they are subject to fact and situation-specific interpretation. For this reason, it is generally preferable and more appropriate for employers to focus on specific performance and conduct problems, then to allow the employee to reveal that the problems may be related to a medical condition or impairment.
The simplest way to look at the situation is to note that your role as an employer is not to diagnose the employee’s illness but, rather, to deal with any performance, conduct, or safety problem in the workplace and to take appropriate action. For example, if an employee’s work is unreliable, if the employee is often absent or late, or she is threatening other workers, then these specific matters—not the underlying cause—can and should be addressed as they would be for any other employee. However, you must be careful not to create the appearance that the employee is being disciplined or discharged because of a disability or need to take medication for an illness.
In the situation you have described, it is unclear whether the employee has demonstrated any specific performance or conduct problems, so let’s assume that frequent rest breaks, slow work turnaround, or low productivity are becoming problematic. The best practice would be to address those concerns as they would be addressed for any other employee who was not suspected to have a medical concern or disability.
In other words, address the performance problem in a way that does not suggest a cause for the problem but, rather, simply seeks the employee’s cooperation in finding a solution and improving his productivity. Ideally, employers should discuss problems before they become too serious in order to give the employee an opportunity to address the employer’s concerns as soon as possible.
If, during this performance discussion, the employee brings up his medical concerns, then it would become appropriate to initiate an interactive dialogue to discuss reasonable accommodations that would enable him to continue performing the job going forward. Examples may include additional or extended break periods, being accompanied by another worker during safety-sensitive tasks, rescheduling maintenance during unfavorable weather conditions, etc.
If no reasonable accommodation is available to allow the worker to continue to safely and effectively perform the work, then other solutions (such as transfer to another position, reduction of hours, or discharge) may be considered.
With regard to medical documentation, once the interactive process begins, both the ADA and California’s FEHA permit employers to ask for reasonable medical documentation to confirm the existence of a disability and the need for reasonable accommodation. The employer cannot ask for additional medical documentation unrelated to these purposes.
For additional assistance addressing this concern, you may wish to review the EEOC’s incredibly useful guidance document on applying the ADA to employee performance and conduct standards. The document provides detailed Q&A scenarios and numerous examples. The document is available at this link, and questions pertaining to performance and conduct issues begin with Question #13.
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