As a consultant to small business I get this question frequently. In fact I got it twice in the month of October. The truth is there is nothing magical about the words.
According to attorney Krista Sterken, of the firm Foley & Lardner LLP, a recent case affirms that an employee NEVER has to actually ask for an accommodation by the use of those words. In this case, a nurse had taken leave to have spinal surgery. When she came back to work it was time to take the annual CPR exam. Due to her back condition and the limitations put on her by her surgeon she could not take the physical part of the exam. Her employer then fired her. (This case is also a nominee for Stupid HR in my opinion.)
Naturally the nurse filed a lawsuit under the ADA claiming that she should have had an accommodation, such as more time to recover. Her employer said “you did not ask for one.”
No magic in the words
Sterken reports that after the case went to court the court sided with the nurse. Sterken said:
The court sided with the employee, determining that a jury could reasonably conclude that she had sufficiently ‘made her employer aware of the need for an accommodation’ – even if she did not actually request one – when she informed the hospital of her surgery and resulting limitations. The court reasoned that an employee is not required to ‘invoke the magic words ‘reasonable accommodation’’ to trigger the employer’s obligation to explore the need for a reasonable accommodation through the interactive process.
As I told one of my clients, if you know of the disability, you need to explore that situation further, even if the employee does not say the word “accommodation.” As Sterken says “an employer should begin the interactive process as soon as it learns that the employee has a physical or psychological condition that may be impacting his or her job performance.”
What to do
Anytime an employee indicates they may have a situation that prohibits them from performing the essential functions of their job it is best practice for the employer to follow up on that situation and begin that interactive process to determine if an accommodation is needed, and if so, what is needed. It may save you a lawsuit, and if it does not, will certainly make you look better in court.