Our employee is having seizures but continues to work and doesn’t ask for any accommodations; what are our obligations?
First and foremost, the health and safety of the employee must take precedence. Should 911 be called? Is there a contact number for someone to call? Is the employee working a physical job that could further endanger him and/or other employees? These are questions to ask and ascertain, and these are the immediate obligations.
Many health issues are not readily apparent, and any resulting impact on work performance should be addressed strictly as performance issues. It is not the employer’s obligation to pry into employees’ health issues.
If the employee discloses a health issue, however, that opens the door to possible accommodation. In this situation, the health condition also is opened up to the employer due to the employee’s seizures in the workplace. This brings the employer’s next obligation under the Americans with Disabilities Act (ADA) and California’s laws protecting people with disabilities under the Fair Employment and Housing Act (FEHA) to work with the employee.
Once an employer is made aware of a disability impacting on an employee’s performance or the workplace, there must be interaction with the employee, commonly known as the “interactive process.” This is when the employee and employer meet, and discuss the limitations and a reasonable accommodation.
There is no precise definition of a reasonable accommodation, in part because the ADA and FEHA don’t want employers to point to a “line in the sand” and claim they have done everything they have to do and that’s it. What’s reasonable for an employer of 500 employees may not be reasonable for an employer with 33 employees.
It is not just up to the employer to come up with ideas; the employee also should provide input because it is her/his disability and she/he could provide ideas that would not occur to the employer.
It also is helpful to get the employee’s doctor’s notes with restrictions. Working together, both parties often can come up with a solution that is very doable. Indeed, when the ADA first was enacted, there were studies noting that the vast majority of accommodations cost the employer $50 or less.
This is a broad topic that can be addressed only lightly within the scope of this article. When there are no apparent accommodations that can resolve the issue, it is important to remember that the accommodation must be a reasonable one.
A conclusion that there are no reasonable accommodations available should come after a few meetings with the employee to come up with ideas.
If the problem cannot be resolved, it is advisable to retain counsel to review the facts before a termination.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.