In a conversation about his tardy attendance, an employee tells his manager he is having difficulty arriving to work because his sleep apnea interferes with his rest and prevents him from waking up on time. He adds that he is being evaluated for drugs that could potentially help him. Is this a request for an accommodation under the Americans with Disabilities Act (ADA)? In general, the answer is probably yes, and the employer could face a potential disability discrimination claim if the request is ignored. 

Title I  of the ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities. Failure to provide an accommodation is a form of disability discrimination. The employee’s request for an accommodation triggers an “interactive process” to determine what accommodation might be reasonable. To trigger the interactive process, the employee does not even have to specifically mention the ADA or state that he is requesting a “reasonable accommodation.” Thus, if such a statement made to a manager could be considered a request for an ADA accommodation, how can an employer possibly monitor these types of employee requests and comply with the ADA?

Realistically, there are two ways an employer can minimize ADA missteps in this scenario. First, the employer should review and make sure that its ADA policy includes a definitive procedure for how an employee should request an ADA accommodation. An increasing number of courts are holding that even though an accommodation request may be informal, it does not necessarily excuse an employee’s failure to use the correct procedure, provided the procedure is clear and disseminated in advance. So once an employer has established a fixed set of procedures to request accommodations, an employee’s failure to follow this procedure could preclude a claim for failure to accommodate.

In one recent case, for example, an employer required employees to make all accommodation requests though its Leave of Absence Administrator, a position it created specifically to deal with employee leave requests. The court held that the employee’s failure to use that specific procedure precluded her failure-to-accommodate claim. Thus, having a clear procedure that tells employees how, and to whom, they should direct their accommodation requests is essential to mitigating risk for failure to accommodate claims.

Second, even if an employer has a policy limiting the methods for accommodation requests, it also should inform managers and supervisors that when an employee who is trying to justify performance issues makes comments about his or her medical condition, such comments are potentially an accommodation request. The employer should direct supervisors and managers to immediately refer any such circumstance to human resources, in order to handle the interactive process.

Handling ADA accommodation requests is tricky. But having a good ADA policy, making sure employees acknowledge receipt of the policy, and properly instructing managers how to deal with requests are essential tools to help prevent unforeseen disability discrimination claims.