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Your organization recently hired a pharmacy assistant whose movements and speech are noticeably slow due to cerebral palsy. The individual has two years of experience with another local pharmacy where he received prescriptions and dispensed prescription drugs without incident. But the individual’s supervisor is displeased with his performance, believing that the individual is too slow and appears to have difficulty matching customers’ names with their prescriptions. Given that the individual has never asked for an accommodation of his disability, can the individual be transferred to another department without engaging in an interactive accommodation process?
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Answer: |
No. Although it is generally the responsibility of an individual with a disability to inform the employer that an accommodation is needed, the Second Circuit recently carved out an exception to the rule for an obvious disability. According to the court, the Americans with Disabilities Act’s statutory and regulatory language requires accommodation of “known” disabilities, not just disabilities for which accommodation has been requested. Thus, an employer has a duty to reasonably accommodate an employee’s disability if the employer knows or reasonably should have known that the employee is disabled.
Cite: Brady v. Wal-Mart Stores, Inc (2dCir 2008) 13 ADD ¶13-129.
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