Yesterday, the EEOC issued a question-and-answer guide for employers on how to address performance and conduct issues with employees with disabilities. “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards. . . . Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.”
For instance, the EEOC guide provides that “[a]n employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.”
By way of example, the EEOC described the following situation: “Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.”
Even if the employee raises the issue of her disability upon receiving notice of the lower performance evaluation rating, the employer is not required to raise the performance evaluation rating because of the employee’s late notice or belated request for an accommodation. Nonetheless, once a request for a reasonable accommodation is made, the employer should explore the accommodation before issuing future corrective action or performance evaluations. For instance, if the employee requests an accommodation after the employer verbally warns the employee that a written warning will be issued if her performance does not improve within a month, the employer is not required to withdraw the one-month evaluation warning period, but should engage in the accommodation process (i.e., request medical documentation and explore the proposed accommodation) before instituting the one-month evaluation period. Importantly, if the employee waited until being informed of his/her termination from employment to inform the employer of a disability and request a reasonable accommodation, the employer is generally not required to postpone the employee’s termination. “The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them.”
“When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer (1) tolerate or excuse the poor performance; (2) withhold disciplinary action (including termination) warranted by the poor performance; (3) raise a performance rating; or (4) give an evaluation that does not reflect the employee’s actual performance.”
The EEOC also explained that “[i]f an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.” By way of example, the EEOC described “[a] blind employee has frequent disputes with her supervisor. She makes personal phone calls on company time, despite being told to stop. She routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks. She taunts the supervisor and disobeys his instructions regarding safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.”
“The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property. Similarly, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. Employers also may (1) prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work); (2) prohibit employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers); using the Internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.); and making excessive use of the employer’s computers and other equipment for purposes unrelated to work; (3) require that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts); and (4) prohibit drinking or illegal use of drugs in the workplace. . . . Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. These factors may be especially critical when the violation concerns “disruptive” behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.”
By way of example, the EEOC provided the following hypotheticals to illustrate these principles:
Example 17: A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.
Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.
The EEOC also recognized that “[a]n employer may enforce conduct rules that are not found in workplace policies, employee handbooks, or similar documents so long as they are: (1) job-related and consistent with business necessity, and (2) applied consistently to all employees and not just to a person with a disability. Many times, the proscribed conduct is well understood by both the employer and employees as being unacceptable without being formally written, such as a prohibition on insubordination.” By way of example, “Mary’s disability has caused her to yell at and insult her supervisor and coworkers. There is no formal policy addressing such conduct, nor need there be. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job-related and consistent with business necessity, and thus Mary’s supervisor may discipline her as long as the same discipline would be imposed on a non-disabled employee for the same conduct.”
With respect to attendance expectations, ”[e]mployees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employer’s regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advance leave). Similarly, employers must provide employees with disabilities with equal access to programs granting flexible work schedules and modified schedules. . . . Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. 73 The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as . . . (1) an inability to ensure a sufficient number of employees to accomplish the work required; (2) a failure to meet work goals or to serve customers/clients adequately; (3)a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; (4) incurring significant additional costs when other employees work overtime or when temporary workers must be hired. Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.”
By way of example, “[a]n employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m. Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one- or two-day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future. Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.”
As an another example, “an employee works as an event coordinator. She has exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. The employee can never predict when the leave will be needed or exactly how much leave she will need on each occasion, but she always needs from one to three days of leave at a time. The employer initially agrees to her request and the employee takes 14 days of leave over the next two months. Documentation from the employee’s doctor shows that the employee will continue to need similar amounts of intermittent leave for at least the next six months. Event planning requires staff to meet strict deadlines and the employee’s sudden absences create significant problems. Given the employee’s prognosis of requiring unpredictable intermittent leave, the employer cannot plan work around these absences. The employer has already had to move coworkers around to cover the employee’s absences and delay certain work. The on-going, frequent, and unpredictable nature of the absences makes additional leave an undue hardship, and thus the employer is not required to provide it as a reasonable accommodation. If the employer cannot reassign the employee to a vacant position that can accommodate her need for intermittent leave, it is not required to retain her.”
“Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1). If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”
Insomniacs can read the full guidance at http://www.eeoc.gov/facts/performance-conduct.html#conduct.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
