September 14, 2020

You Know What Happens When We Assume!

An employee requests a specific hearing protection device as a reasonable accommodation.  The ER declines because the device does not meet specific rating noise-reduction ratings required by federal regulations. The employer’s Director of Disability Management (DDM) asked others to look for other remedial devices. When none were found, the employee was fired. The employee then sued, alleging the employer failed to provide a reasonable accommodation under the Americans with Disabilities Act (ADA).

Who won? The U.S. Court of Appeals for the 7th Circuit found the employer violated the ADA.  Why?  There were several reasons. One was that despite the employer’s attestation that they conducted an “extensive search” for an alternate accommodation, that search was never done.  The DDM assumed others did as he asked, and others may have assumed the same.

When asked, the Chief Medical Officer said he did not do so. The Senior Manager of Industrial Hygiene said he had no responsibility to look for other devices. So, after the employer rejected the employee’s request, nobody took any additional steps to explore reasonable accommodations. Oops!

Lessons learned. Management training 101. Do not assume! Give deadlines with your requests and instructions. If you receive no response by the deadline, follow up. Silence is not acceptance.