Employer considerations when interviewing a disabled person for employment with Travis Hollifield
Attorney Tom Olsen: Welcome back, everybody. My name is Tom Olsen. The name of the show is Olsen on Law every Saturday between 11:00 and noon, right here on WDBO. My guest today is attorney Travis Hollifield. He helps working men and women and their families with employment issues such as pregnancy discrimination, lactation, the Family and Medical Leave Act, severance packages, and equal pay in the workplace. Travis, welcome back to the show.
Attorney Travis Hollifield: Thanks, Tom.
Attorney Tom: Travis, here's my question for you. If you are an employer and you're looking to employ somebody, and you have people who are applying to work in your business, and somebody comes to the interview and they're in a wheelchair, what do you need to do to treat them equally, or at least not discriminate against them?
Attorney Travis: The Americans with Disabilities Act is a federal statute that essentially requires employers to reasonably accommodate applicants for employment and employees with respect to their disabling condition. I know that's a broad way of looking at it, but you start there and you then look at the person's disability, whatever it is, whatever it may be, and whether or not they can perform the essential functions of the position, given their disabling condition, and whether or not they may need a reasonable accommodation in order to perform those functions.
Attorney Tom: If you were the employer and you had 10 applicants, would you tell the person in the wheelchair, "Hey, I can't hire you because something about the wheelchair is just not going to work with the business we're in?" Or would you tell the applicant, "Hey, I've just hired somebody else?"
Attorney Travis: I wouldn't do either. [laughs] I think that would be an invitation to a lawsuit or at least a letter from somebody like me. Essentially you want to be as blind as you can be to the disabling condition. What you're looking for is a qualified candidate that can perform the essential functions of the given position. In the world of the American workplace, there are positions that require, for example, varying degrees of mobility, or varying degrees of the ability to lift things, or stand on ladders, or whatever the case may be.
You have to see if the individual who is presenting him or herself as a potential employee to your company or your firm, whether or not they can perform those functions and whether or not the employer can reasonably accommodate that individual if they need further assistance.
Attorney Tom: Here's another situation. You're an employer, somebody comes to apply for your work, they're in a wheelchair, you know they've got a disability. Somebody else comes to apply to work at your business, and they've got some hidden disability, say they got PTSD that if they hear a loud bang, it makes them go crazy and insane. Would that applicant be required to disclose that to you?
Attorney Travis: Generally no, and I say that generally. Generally, no. I'm assuming based on your hypothetical, that the individual knows that they have PTSD.
Attorney Tom: Yes.
Attorney Travis: As you, I'm sure are well aware that there are very strong privacy protections for all of us as Americans with respect to our private healthcare information, and we're not required to disclose that to frankly anybody unless there's certain circumstances where it's national security interest or some other interest that overrides the person's privacy, but as a general matter, no. If I know I have PTSD, and I want to come work for your firm, I'm under no legal obligation to tell you about that.
Now, as circumstances occur in the workplace where my disability is interfering with my ability to perform the essential functions of my job, then the burden is on me as the employee then to inform you, "Hey, Tom, I need an accommodation. I have this disabling condition and we need to talk about it and see if we can work out an accommodation that works for both of us."
Attorney Tom: How often are employers calling you and saying, "Travis, I've got an employee that has a disability, and things were good, but now things are not so good, and I need advice about how to handle this." How often are you getting those phone calls?
Attorney Travis: Typically, Tom, I represent the affected employee and not the employer, although I have handled some employer cases over the years. Just from a general call volume at my office, I'm getting it from the employee side, but for the cases I have handled for employers that have these issues, they are fairly frequent. There is a level of frequency that I see with this being an issue in the American workplace or in our situation, the central Florida workplace.
Attorney Tom: As a general rule, if you're an employer and you are hiring somebody new, and you have 10 people who apply, and you pick one of them, are you saying as to the other nine, you say nothing to them?
Attorney Travis: Say nothing to them about?
Attorney Tom: Say like, "I didn't hire you at all," or how do you tell the other nine people you did not get the job?
Attorney Travis: Certainly, there's no legal obligation to tell the other candidates anything other than, "You didn't get the job," or, "We went with another candidate. Thank you for your interest in the job. We'll keep your resume on file," or something like that, but there's no legal obligation for the employer to inform a candidate any specific information about the reasons why they were not chosen for the position.
Attorney Tom: In that situation, have you ever had a prospective employee call you? Actually, I can tell we're out of time, Travis.
Attorney Travis: Oh.
Attorney Tom: We've had a great conversation today.
Attorney Travis: Thanks.
Attorney Tom: There's so much to know about this area of the law. We appreciate your expertise.
Attorney Travis: Thanks, Tom.
Attorney Tom: My guest today has been attorney Travis Hollifield. We'll have him back sometime soon. Everybody, thanks for all your great calls and questions. We do so much appreciate it. My name is Tom Olsen. The name of the show is Olsen on Law.
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