Most employers understand the need to evaluate accommodations when an employee with a disability requests some work-related modification.  However, a recent decision by the U.S. Court of Appeals for the Second Circuit highlights an employer’s obligation to evaluate reasonable accommodations for an employee’s disability if the disability is obvious, regardless of whether the employee requests an accommodation or not.

The case, Brady v. Wal-Mart Stores, Inc., involved a nineteen-year-old man with cerebral palsy.  His disability rendered him noticeably slower in walking, speaking, eating and seeing as well as impairing other cognitive and motor functions.  However, he had worked for two years in a local pharmacy receiving and dispensing prescriptions without incident.  He applied for a similar position, classified as “Salesfloor Associate,” with Wal-Mart in 2002 and was subsequently hired.  The Wal-Mart pharmacy supervisor testified that she thought the plaintiff was too slow, appeared to have trouble matching prescriptions, and that she knew something was wrong.  Only a few days after his hiring, the plaintiff’s job was changed to collecting shopping carts and garbage in the parking lot.  Shortly thereafter, the plaintiff quit.

The plaintiff never requested an accommodation and testified that he did not think he needed one.  However, the Second Circuit stated that a situation like this, in which an employer perceives an employee to be disabled, but the employee does not so perceive himself, actually weighs against a requirement that the employee is responsible for seeking an accommodation.  In such a scenario, the employer is obligated to engage in an “interactive process” with their employee aimed at assessing whether the employee’s disability can be reasonably accommodated.  Prudent employers should consult with legal counsel when dealing with an employee who appears to be having work-related difficulty due to an obvious disability.

Minimum Wage Increase Reminder:  The second of three increases to the federal minimum wage will take effect on July 24, 2008, when the federal minimum wage rises from $5.85 per hour to $6.55 per hour.  Most states have passed their own minimum wage law, and many of the states have minimum wages that differ from the federal rate (North Carolina’s minimum wage is currently $6.15).  Because the federal law covers nearly all employees, making most employers subject to both state and federal laws, employers may effectively ensure compliance with both sets of laws simply by following the one that is most beneficial to the employee.