The Americans with Disabilities Act (ADA) requires you to
provide reasonable accommodations to disabled employees so that they can perform the essential functions of their
jobs. The Equal Employment Opportunity
Commission (EEOC) contemplates that you will engage in an "informal, interactive process"
with your employees to decide on an accommodation.
But what do you say when you are approached by other
employees about the accommodation provided? One employee''s
reasonable accommodation looks like
"special treatment" to other workers. How do you maintain morale without violating the confidentiality
provisions of the ADA?
EEOC offers guidance
The ADA prohibits you
from disclosing "medical" information about your employees, except in
very limited circumstances. As a result, telling co-workers that an employee is
receiving accommodations because of a bad back, cancer, or other medical
condition would likely violate the ADA.
While saying nothing
about an accommodation is the safest approach, it simply might not be possible.
Co-workers -- or unions -- may insist on knowing why one person gets to perform
his or her job in a different manner, at a different time, or with shiny new
equipment or comfy-looking furniture.
The EEOC has
suggested one approach to this dilemma in its Enforcement Guidance on the ADA
and Psychiatric Disability, No. 915-002 (3/25/97). It allows you to hint
strongly at the reason the employee is receiving "special treatment"
so long as you don''t actually reveal that a reasonable accommodation has been
made as a result of that employee''s disability.
The guidance states
that you may "explain" that you are "acting for legitimate
business reasons or in compliance with federal law." If repeated often
enough, even the most dense employee should get the message. Therefore, this
script should be provided to any supervisor who has knowledge of an
accommodation and is likely to be approached by others about it. Of course, you
may reveal more, but not without risk.
You can''t zip employees'' lips
Suppose that you have
told a few employees about an accommodation or the reasons you made it. Can you
prohibit them from telling other employees or their union representative? A
recent decision of the National Labor Relations Board (NLRB) seems to say no if
the accommodation affects their working conditions. It has ruled that this
activity is protected by the National Labor Relations Act (NLRA).
In the NLRB''s new
decision, a security guard revealed to other guards that she had a medical
restriction. The restriction prevented her from wearing a side arm and from
handling classified trash. The guards then discussed the situation with their
shop steward and considered filing a grievance. The employer became aware of
the discussions and ordered that they stop discussing their co-worker''s medical
restrictions. It reprimanded them when they failed to stop their discussions,
and their union filed an unfair labor practice charge.
The Board ruled that
the employer violated the NLRA when it issued the reprimand. It rejected the
employer''s contention that the ADA required the restrictions on the employees''
discussions. The Board found that the blanket restriction imposed by the
employer violated the Act because the restrictions and accommodations affected
their working conditions.
While the guards were
union employees, this decision may have impact in a nonunion environment. As
discussed in last month''s newsletter, the Act covers "protected concerted
activity," even though no union is involved. As a result, disciplining
nonunion employees for complaining about or protesting employer actions may
violate the Act. Lockheed Martin Astronautics, Case 27-CA-14557
(Jan. 6, 2000).
Bottom line
You should be prepared
to handle co-worker inquiries after a reasonable accommodation is provided to
another employee. Supervisors should be advised to follow a script to avoid ADA
liability, and they should not be permitted to go beyond the script without
prior approval. You, however, should act carefully in restricting discussion
among co-workers whose jobs are affected by the accommodation, particularly in
a unionized environment.
Copyright 2000 M. Lee
Smith Publishers LLC.
This article is an
excerpt from Delaware Employment Law
Letter, written by the law firm of Young, Conaway, Stargatt, & Taylor,
based in Wilmington, Delaware. Delaware
Employment Law Letter does not attempt to offer solutions to individual
problems but rather to provide information about current developments in
Delaware employment law. Questions about individual problems should be
addressed to the employment law attorney of your choice.
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