Disability Accommodation: Do I Have to First Request Accommodation?

Disability Accommodation: The Factual Background.

Jane has a manageable disability, but she’s been careful not to disclose it because she just didn’t want to deal with the discrimination. She has suffered from depression and wild mood swings over the years, but medication until recently kept the situation under control.

Recently her mother died, the dog developed cancer, and she received an eviction notice. Her boss has been harassing you about late reports and errors, which only increased the errors. One day Jane simply lost it, and stormed out of the office without notification. “I saw it coming,” her manager said. The next day Jane received an overnight delivery that she had been terminated because of “job abandonment.”

Lessons Learned: Disability Accommodation Duties.

1. The employee has the duty to request accommodation for a disability. That is, the employer is relieved of the duty to “guess” or “speculate.”

2. Even if Number “1” is true, in Jane’s case her “episode” may have been so sudden and unexpected to her that she could not have anticipated the need for time off as an accommodation. On the other hand, the facts indicate Jane’s boss “saw this coming,” meaning she could read the signals that Jane was emotionally distraught and moody, and struggling to do her work. Likewise, Jane herself knew her condition was worsening. She could have requested an accommodation before reaching the point of crisis.

3. The employer may have a duty to initiate an inquiry concerning the need for accommodation when (a) the employer knows by observation that the employee has a likely disability; (b) the employee is unable because of the sudden onset of the disability to make a formal request for accommodation and (c) the employer knows the employee cannot make the request because of the disability. The overall state of facts here indicate that Jane may well have seen the need for an accommodation (such as some time off from work for treatment) but resisted asking for it. If so, waiting until after the termination is too late. At some point, the fear of letting people know you have a disabling condition is outweighed by the need to invoke your legal rights.

4. The “abandonment of position” by suddenly walking off the job “in a huff” may be reason to terminate, but not necessarily basis to deny Jane her unemployment insurance benefits. Jane may be able to prove her sudden departure was not “voluntary” because of her emotional crisis. The unemployment department’s decision will be a close one.

Conclusion. Jane had accommodation rights, but she was so afraid of asserting her need for an accommodation of time off for treatment that she allowed her condition progress to a crisis. She now has a tough legal issue to overcome: is her employer liable for failure to engage in an “interactive process” or does the employer have a complete defense? Jane could have avoided this problem by seeing that her condition was deteriorating and she needed to seek help from both her employer and her doctor before she lost control.