I’ve mentioned before that, years ago, I was involved in a major auto accident. And as a result, I spent years in recovery. I was fortunate to work for an employer who accommodated my situation. Not everyone gets those same opportunities. That’s what today’s reader note is about.
I received my first performance review after 22 months in my role. Two months later, I was forced into another job. I am not good at this job. Finally, I figured out why and contacted HR – I’m dyslexic and there was too much turning around, making me both slow and exhausted.
HR said they were going to send me some paperwork via certified mail, but it never came. Meanwhile, I started getting the cold shoulder from my co-workers. After telling my manager that I was going to leave (because I was being ignored by HR and my co-workers), I was told to empty out my company vehicle and not return to work. I asked my manager if the company had considered assigning me to another role because of my dyslexia and they had not. There was no effort for an accommodation. I have not received any contact from the company since. Have I been fired? Can I resign? I have not received anything related to severance including information about my health insurance. While I am dyslexic, I have a bachelor’s degree and am very good at what I do. Does noting the dyslexia on an application make me hire-able for the ‘disability’?
Now I do understand that my situation is different and it took place years ago. But job accommodations are a challenging subject – for both employees and employers. To offer some insights, I asked employment attorney Donna Ballman, author of the award-winning book “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.” Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, has been named one of the American Bar Association’s 100 best legal blogs for the past five years.
Donna has helped us before. She shared her knowledge with us when a reader asked “Can You Bring Your Mother to a Meeting With HR?” Please remember she does have a full-time job that I’m sure keeps her very busy. Donna’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Donna, is dyslexia a condition covered by any employment legislation? And if so, which legislation?
[Ballman] Dyslexia is a protected disability under the Americans With Disabilities Act (ADA) and under many similar state laws.
In general, do employees have an obligation to follow-up with HR regarding paperwork or forms they request? Why or why not?
[Ballman] If you are expecting paperwork from HR and it doesn’t show up, you should follow up with them. It could be lost in the mail/email. You may have specific deadlines to fill out the paperwork and, if you don’t tell them that it never came, they may assume you are no longer interested.
Are companies required to reassign employees to another role if they are having trouble in their current role? And if they’re not required, are there pros/cons to doing it anyway?
[Ballman] Reassignment is one possible accommodation under the ADA, but it is not required. In general, you have a protected disability if you are able to perform the duties of your job with a reasonable accommodation. If you are completely unable to perform your job, you may not be covered. EEOC gives the example of a person with dyslexia requesting the accommodation of having papers read to them. While that may be a reasonable accommodation for someone who rarely has to read at work, it is not a reasonable accommodation for the job of a proofreader.
As to reassignment, it may be a reasonable accommodation if there is a vacant position and if the employee is qualified for that vacant position. But the employer does not have to create a position to accommodate a disability. Here are the EEOC guidelines covering reassignment.
Why should an employee know whether they’ve been fired? And does it make any sense for them to ask to resign instead?
[Ballman] If you were told to empty out your desk and not return and they stopped paying you, that’s a pretty good indication you’ve been fired. If you’re suspended, then you’re not normally told to empty your desk. On the other hand, if they were talking about a reassignment then that could be something still in the works.
I’d suggest emailing HR and saying something like, “Pursuant to the Americans With Disabilities Act, I requested a reassignment to another position to accommodate my dyslexia. Since then, I was sent home without pay and without communication. Unless I hear otherwise within 72 hours from this email, I will assume that I have been fired for requesting an accommodation.” That ought to get their attention. If you don’t get a response, apply for unemployment and talk to an employment lawyer in your state.
Last question. If an employee has a disability or condition that could impact their work, when should they consider sharing that with a potential employer?
[Ballman] After you get a job offer, you should disclose any accommodations you may need for your position. You should not disclose a disability before getting an offer, nor should a potential employer ask. They may make a conditional offer subject to a fitness for duty exam or being able to perform the duties with an accommodation. If you discover you need an accommodation after you start, then get with your doctor to discuss what accommodations would allow you to perform all the essential duties of your job. Then contact HR and make a formal request for reasonable accommodations under the ADA in writing.
They then have to engage in the ‘interactive process’ with your doctor and you to determine what reasonable accommodations can be made. They don’t have to grant your ideal or requested accommodation if they can offer an alternative that allows you to perform your job. If they can prove that accommodating you is an undue hardship, they don’t have to grant the accommodation.
My thanks to Donna for sharing her knowledge with us. I hope you’ll check out her book and blog for more insights.
Organizations ask employees to do many things. At some point, employees might need accommodations. Often those accommodations cost very little and send the message that the company cares. Something to think about as recruiting gets tougher and engagement remains stagnant.
Image taken by Sharlyn Lauby after speaking at the SHRM Annual Conference in Washington, DC