By Andrew Henson

For employees with a disability, managing symptoms can be a continual struggle. Particularly in the area of mental health and other “unseen” conditions, many employees with a disability feel torn between disclosing their disability and asking for a reasonable accommodation, or keeping quiet out of fear that they will be subjected to judgment or retaliation from supervisors or colleagues. This dilemma is often compounded by a suspicion that the employer will be unwilling to provide a reasonable accommodation in the first place. In fact, the most recent available data from the EEOC shows that reasonable accommodation complaints have been on the rise in recent years. While between 2006 and 2008, EEOC Charges in North Carolina alleging failure to provide reasonable accommodation comprised 21.4 percent of EEOC Charges under the Americans with Disabilities Act (ADA), between the years 2012 and 2014, that figure trended upwards to 34 percent.[1] However, while an employee with a disability may have a well-founded suspicion that their requests will be ignored, failure to communicate with the employer risks losing legal protections. This issue is of even greater concern where the activation of symptoms of an employee’s disability may appear to violate an employer’s personnel policies or code of conduct, such as in the case of Attention Deficit Hyperactivity Disorder (ADHD), or Tourette syndrome, to name a few.

As with any disability, an employee’s rights are strongest when: (1) the employer knows about the disability beforehand; and (2) an employee has requested accommodation before symptoms appear in the workplace. However, the timing of a request for accommodation may be particularly important when symptoms related to an employee’s disability can cause arguable violations of a company’s personnel policies. Specifically, a retroactive request for accommodation, after the symptoms of the disability have manifested in misconduct may not “cure” the behavior in question. A well-known example of this is found in Halpern v. Wake Forest Univ. Health Sciences, 669 F.3d 454, 465 (4th Cir. 2012). There, the Fourth Circuit affirmed that a request for an accommodation was untimely where the plaintiff had not requested an accommodation before instances of unprofessional conduct stemming from his ADHD. The Fourth Circuit stated in pertinent part:

A school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodations to help the student avoid engaging in misconduct. But, the law does not require the school to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.

Id. at 465.[2] Accordingly, a request for accommodation generally needs to occur before the symptoms manifest.

Some courts, however, have limited Halpern and found a failure to accommodate claim may lie where the employee did not have time to request an accommodation. For example, in Kemp v. JHM Enterprises, Inc., 2016 WL 859361 (D.S.C. 2016), the court denied summary judgment against the employee where the employee experienced a diabetic episode on the job and the employer characterized the diabetic episode as misconduct and terminated him on those grounds. In that case, the plaintiff was a newly hired employee who had informed his employer of his diabetes before the episode. Regarding his subsequent termination, his employer stated that they, “weren’t terminating Mr. Kemp because of a diabetic episode. [They] were terminating Mr. Kemp for unprofessional behavior in the workplace.” Despite the lack of prior requests for accommodation, the court denied summary judgment, stating that “Kemp arguably did not have sufficient time or opportunity to request an accommodation[.]” Id. at *5.

Similarly, in LaSasso v. FedEx Express, 2017 WL 1327677 (E.D.N.C. 2017), summary judgment against the employee was denied where an employee had a diabetic episode in a disciplinary meeting, identified that he had diabetes, and said “I can’t take this anymore.” Id. at *2. Based upon those communications to the employer, the court found that “[q]uestions of fact remain as to whether FedEx denied plaintiff a reasonable accommodation.”

While Kemp and LaSasso may stand for the notion that legal protections can attach even where a request for accommodation has not been made, this is the exception rather than the rule. To ensure that an employee received the protections afforded by the ADA, the employee should ask for accommodations now, not later.

[1] Data taken from: http://www.disabilitystatistics.org/eeoc/custom.cfm

[2] Halpern was decided under the Rehabilitation Act and the ADA.