Donna Seale at Human Rights in the Workplace is continuing our discussion on the differences between American and Canadian disability discrimination law and Internet addiction. Her latest is as follows:
As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided. (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress). In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not.
Let me respond as follows:
- It is entirely defensible to terminate an employee with a disability if you don't know the employee has a disability, and you cannot make an accommodation if you don't know that one is needed.
- If an employee requests an accommodation, the employer must engage in an interactive process to determine if there is a reasonable accommodation available that will enable the employee to perform the essential functions of his or her job with or without reasonable accommodation. Any accommodation that is provided need not meet the employee's preference -- it just must be reasonable.
- In all likelihood, this interactive process will result in a dead-end for an employee who claims an Internet addiction. While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer.
In sum, I agree with Donna's conclusion:
Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.
Companies should not turn a blind eye to potential accommodation issues. Indeed, doing that could result in liability where it does not otherwise exist. In the case of an addiction, however, employees should not be able to lean on the ADA as a crutch to save their jobs when they permit their addiction (whether it's the Internet, sex, drugs, or something else) to pervade the work environment.