Is 'I've Changed Meds' an Accommodation Request?

​An employee who's questioned about fighting with co-workers, sudden tardiness or a dip in performance may explain, "I've changed medications." Even an assertion this simple should be treated as a notice from the worker that a reasonable accommodation might be needed under the Americans with Disabilities Act (ADA), said Erin Williams, an attorney with Ogletree Deakins in St. Louis.

A worker doesn't have to use any particular words to request an ADA accommodation, she noted. The key is that the employee has notified the manager that a disability may affect his or her ability to do the job.

Joan Casciari, an attorney with Seyfarth Shaw in Chicago, agreed that an employee's stating "I've changed meds" might be sufficient to put the employer on notice that an accommodation is needed.

Misconduct

If an employee says he or she has changed medications to explain a fight in the workplace, the employer shouldn't overlook the misconduct, because the employee's behavior may threaten others, Williams said.

In general, employers don't have to tolerate bad behavior that arises because of a health issue requiring medication, Casciari noted. If an employer decides to take action such as issuing a warning or a performance-improvement plan or even terminating the employee, the employer can probably proceed before an employee makes an accommodation request, without risk of liability, she noted. But, she said,

"it's often very challenging and frustrating for an employer to address performance issues after an employee has come forward with an ADA request." Failure to follow the interactive process between the employer and the employee for identifying a reasonable accommodation raises risk for the business, she added.

[SHRM members-only how-to guide: How to Handle an Employee's Request for Accommodation]

Managerial Training

"All managers should be trained on how to identify and respond to accommodation requests, as well as the importance of documenting such requests and promptly forwarding them to human resources," said Marilyn Moran, an attorney with FordHarrison in Orlando. The manager should not ask prying questions, she cautioned.

For example, a supervisor should not ask an employee about his or her diagnosis or underlying condition, nor require specific details about any medication the employee is taking, Williams explained.

The employee who announces he or she has switched medications has conveyed private medical information, Moran noted. Even if the employee doesn't have a disability, the worker may later claim that the employer perceived him as having an ADA disability if there is an adverse action after this announcement, she noted. The law prohibits employers from discriminating against people regarded as having a disability. The ADA also requires employers to keep medical information confidential.

The manager should ask how he or she can help the employee, said David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute in Golden, Colo. If there isn't a simple fix, the manager should refer the employee to HR so that HR can identify an accommodation, he noted.

Referring accommodation requests to HR "will serve the twin purposes of protecting the employee's privacy and shielding the manager from being accused of using the employee's confidential medical information as a basis for discrimination," Moran said.

Possible Accommodations

Possible accommodations for a person with a disability who has changed medications include:

• ADA leave to give the employee time to adjust to the medication, as long as it doesn't pose an undue hardship on the employer, Moran noted. The employee also may be entitled to time off, either intermittently or on a continuous basis under the Family and Medical Leave Act, Casciari observed.
  
• A reduced work schedule, noted Maxine Adams, an attorney with Epstein Becker Green in Washington, D.C.
  
• Letting the employee work remotely while adjusting to the new medication, as long as that does not create an undue burden on the employer, Adams said.
  
• A change in work shifts, such as when a worker has problems with depression in the morning but not the afternoon, noted Jim Kizziar, an attorney with Bracewell in San Antonio.
  
• Other modifications to the worker's schedule, including starting earlier or later, or taking breaks during the workday, said Michael McClory, an attorney with Bullard Law in Portland, Ore.
  

"Managers should not shy away from holding employees—even those with accommodations—to regular performance standards," Williams said. But they should cooperate with HR to identify a reasonable accommodation, she noted.

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