Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions.

This week, Congress reached an agreement on amending the Americans With Disabilities Act when both the House and Senate passed the ADA Amendments Act (ADAAA), which President Bush is expected to sign. The ADAAA becomes effective on January 1, 2009 and the EEOC has been tasked with drafting binding regulations interpreting and implementing the new provisions. The ADAAA is intended to reverse many pro-employer decisions by the Supreme Court (including Sutton v. United Air Lines and Toyota Manufacturing v. Williams) which some felt improperly narrowed the reach of the ADA. Among other things, the ADAAA changes existing law as follows:

1) Broadening the statutory definition of “major life activity” to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” and to include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

2) Specifically requiring the definition of disability to be construed broadly. “The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act” and an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

3) The mitigation measures doctrine has been abrogated. Except for ordinary eyeglasses and contact lenses, a “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.” This means that the ADA will now cover individuals with controlled chronic conditions, such as diabetes, and asthma, etc.

4) An individual can be regarded as having a disability if he or she proves only that s/he “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment” regardless of whether “the impairment limits or is perceived to limit a major life activity.” In other words, the individual need only to be regarded as impaired to be regarded as disabled even though to actually be disabled, s/he would have to be substantially limited by the impairment. However, a person will not be treated as regarded as disabled if the impairment is “transitory and minor” (i.e., “an impairment with an actual or expected duration of 6 months or less.”). In other words, having a broken arm would not convert the person to disabled because the impairment is transitory.

5) Employers “need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual” who is only incorrectly regarded as disabled. In other words, only those who are actually disabled (rather than merely regarded as disabled) are entitled to reasonable accommodations.

6) Covered entities “shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”

7) Reverse discrimination claims are prohibited. “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.”

Employers can take some comfort that earlier provisions of the proposed ADAAA did not survive the Senate version, including versions that would have widened the definition of “disability” to include any mental or physical impairment (like the laws of some states, like Connecticut), a requirement to put the burden of proof on employers, and a per se list of disabilities.

Insomniacs can read the full ADAAA at http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110p47TJQ::

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.

Emergency Planning Resources

With the recent storm damage, residents and companies in Central Ohio have been faced with testing whatever emergency plans they had in place to keep their businesses running and to get operations up as fast as possible. To the extent that these plans were inadequate or need to be updated, there are a number of resources available to assist in that process.

www.thebci.org/
The Business Continuity Institute Web site contains information and resources for both the business continuity novice and expert, as well as allowing members the opportunity to communicate and network with each other.

http://nonprofitrisk.org/tools/cares/cares.shtml.
The Nonprofit Computer Assisted Risk Evaluation System (Nonprofit CARES) is a web-based tool designed specifically for nonprofits by the Nonprofit Risk Management Center in Washington, D.C.

http://www.contingencyplanning.com/
Contingency Planning & Management. At this site you will find on-line articles, tips, “how-to” manuals, and on-line training in business continuity planning. In addition, you can subscribe to a free on-line magazine, Contingency Planning & Management.

http://www.drj.com/
Disaster Recovery Journal has been publishing information on disaster recovery since 1987 and provides a number of helpful articles regarding disaster recovery and business continuity planning. Under its “tools” page, it also has sample and actual business continuity plans from dozens of institutions.

http://www.disaster-resource.com/
Disaster-Resource.com provides a number of articles, a chat room, business continuity planning supplies, and general support for those who are developing business continuity plans.

http://www.fema.org/
This is the federal government site for emergency and disaster planning/prevention for hurricane, fire, flood, and terrorist action for individuals, families, businesses and other organizations. It is pretty comprehensive in covering the types of emergencies which an organization could face.

http://www.globalcontinuity.com/
A business continuity/disaster recovery (BC/DR) portal service provided by Global Continuity Plc. This site has information and resources on a broad range of topics.

http://www.iprepare.com/survival-kits.html
IPrepare.com sells a number of disaster and emergency kits, both for the home and business. Kits offered for sale include first aid kits, automobile emergency kits, food preparation kits, and many more.

http://www.nonprofitrisk.org/
The Nonprofit Risk Management Center offers many free publications on business continuity, natural disasters and emergency situations; business interruption insurance, information technology, and strategic risk management. It is extremely user-friendly for novices to the subject.

www.nonprofitroundtable.org/Strategic-Priorities/Preparedness-Resources/menu-id-38.
The Nonprofit Roundtable of Greater Washington has a variety of free resources on its website for preparing an emergency preparedness plan, including a plan template.

http://www.npccny.org/info/disaster_plan.htm
The Nonprofit Coordinating Committee of New York provides free information on its website, including comprehensive checklists and templates for developing a business continuity plan.

http://www.osha.gov/SLTC/emergencypreparedness/index.html.
The Occupational Safety & Health Administration provides an informative site for emergency responses and preparedness. This site provides good information regarding creating and maintaining a safe work environment.

www.ready.gov/business/index.html and http://www.ready.gov/business/other/library.html. Help with creating a business continuity plan quickly to get your organization back to business after a terrorist attack, tornado, fire or flood.

http://www.redcross.org/
The American Red Cross site contains a wealth of information regarding disaster and emergency situations, as well as business continuity planning.

http://www.rothstein.com/
Disaster recovery information regarding the industry's principal source for hundreds of books, software tools, videos and research reports.

www.sba.gov/services/disasterassistance/disasterpreparedness/index.html
The U.S. Small Business Administration site addresses disaster assistance and prevention for small businesses.

http://www.score.org/disaster_preparedness.html
Score has numerous local community sites offering small businesses with face-to-face and e-mail counseling for disaster-related events and issues.

http://www.availability.com/
A vendor-neutral site committed to the improvement of Information System processes and information/data management systems, with links to resources to help educate, analyze and remedy business continuity.

http://www.infosyssec.net/infosyssec/security/buscon1.htm
This is a comprehensive computer and network-security resource on the Internet for information system security professionals.

Sixth Circuit: First Amendment Protects Public Employee’s Interview with Reporter About Boss’s Alleged Sexual Harassment of Co-Worker

On Monday, the Sixth Circuit reversed summary judgment in favor of an employer on the employee’s allegations that she had been discharged for exercising her First Amendment rights to comment on matters of public concern. Hughes v. Region VII Area Agency on Aging, Nos. 07-1570/1647 (9/8/08). In that case, the plaintiff was fired after she was sought out and interviewed by a newspaper reporter about a sexual harassment lawsuit which had been filed against her boss by a co-worker, about her belief that another employee was fired for advocating an independent investigation and about other arguably inappropriate conduct. The plaintiff also objected to disciplinary action and an unpaid suspension imposed against her for discussing with a colleague the affect of possible budget cuts at the agency. Following her termination, she filed suit under § 1983.

First, the court found that the agency was not a private non-profit, but was, in fact, a government agency because of its corporate structure, funding and federal statutes. In other words, the agency was subject to § 1983 because it acted “under color of state law due to the pervasive entwinement of governmental entities in the management and control of” the agency. The Supreme Court previously “noted that ‘a challenged activity may be state action . . . when it is ‘entwined with governmental policies’ or when government is ‘entwined in [its] management or control.’” However, the Supreme Court has also stated that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974). Nonetheless, in this case, the extensive statutory and regulatory provisions “show that government is deeply “‘entwined in [the] management or control’” of the agency employer: government entities are the sole members of [the agency] and they appoint eleven members of [the agency’s] board of directors, with their chosen representatives appointing the final member of the board. Furthermore, virtually every act that [the agency] performs must receive approval from a state agency, and the very existence of [the agency employer] as a “designated” area agency on aging depends upon [the agency] being “under the supervision or direction of the state agency.” MICH. COMP. LAWS § 400.589(1) (emphasis added). The entwinement of government in the management and control of [the defendant agency] is thus a matter of statutory policy, in addition to the fact that the membership of [the defendant agency] consists entirely of governmental entities.”

Once the court determined that the agency employer was required to comply with the federal constitution, it examined whether it violated the employee’s First Amendment rights. “[I]n determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage” in a multiple-step inquiry. First, a court “must ascertain whether the relevant speech addressed a matter of public concern.” Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). In conducting this inquiry, the court “must assess ‘the content, form, and context of a given statement, as revealed by the whole record.” In this case, the court had no difficulty in finding that comments about a sexual harassment lawsuit against the agency’s Executive Director and his alleged retaliation against a complaining employee constituted a matter of public concern. “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’ . . . In Connick, the Supreme Court offered examples of speech that would involve matters of public concern, such as statements “inform[ing] the public that [a governmental entity] was not discharging its governmental responsibilities” or statements “seek[ing] to bring to light actual or potential wrongdoing or breach of public trust on the part of” government employees. . . . . The Court in Connick also described an individual’s “right to protest racial discrimination” as “a matter inherently of public concern.” . . . Likewise, we have stated that “it is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern.” . . . Finally, in Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988), we observed that our “finding of public concern is here strengthened by the fact that the plaintiff did not solicit the attention of the media, but simply responded to questions regarding an existing controversy.” In Matulin, we described the Third Circuit’s decision in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), as holding “that statements relating to charges of discrimination leveled at public employers and reported upon by newspapers clearly involved matters of public concern.”

The court did not reach a conclusion about whether the plaintiff’s comments to a co-worker about budget cuts necessarily constituted a protected matter of public concern. On one hand, her comments about trying to influence the political budget process could be constitutionally protected. On the other hand, comments adversely affecting employee morale by highlighting possible layoffs could be the subject of disciplinary action. The Supreme Court has found that even when employee speech “touches upon matters of public concern” to a limited extent, the employee’s discharge “did not offend the First Amendment” because that “limited First Amendment interest . . . d[id] not require that [the employer] tolerate action which [it] reasonably believed would disrupt the office . . . and destroy close working relationships.” Therefore, the trial court was instructed to reexamine this issue upon remand.

In the second step of the inquiry, the court considered “whether the employee’s expressions were made ‘pursuant to his or her official responsibilities” or whether the “statements or complaints . . . [were] made outside the duties of employment . . . . In Garcetti, the Supreme Court held that “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities” and thus concluded that the plaintiff’s First Amendment retaliation claim failed given that “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.’” However, in this case, the agency never argued that the plaintiff made any of the challenged statements in connection with her official duties.

The third step of the inquiry requires to the court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” With respect to the employee’s comments to her co-worker about budget cuts, the Court instructed the trial court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Interestingly, it did not discuss any balancing test in connection with the sexual harassment discussion.

Finally, the multiple-step inquiry requires the court to “determine whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.” In this case, the actual motivation of the employer was in question because it failed to conduct even a cursory investigation before imposing the disciplinary action. “[T]he district court should analyze as a separate retaliation claim whether [the plaintiff’s] comments to her co-workers in June 2004 were a substantial or motivating factor in imposing the reprimand and two-day unpaid suspension; the district court should also then determine whether, under Waters, Defendants conducted a reasonable investigation into the nature of [the plaintiff’s] alleged statements.

Insomniacs can read this decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0341p-06.pdf.

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.

Sixth Circuit: Plaintiff Cannot Avoid Termination for Violating Attendance Policy Simply by Engaging in Protected Conduct and Claiming Retaliation.

The Sixth Circuit recently affirmed summary judgment in favor of an employer who terminated the plaintiff for excessive tardiness in accordance with its detailed policy even though the plaintiff had recently taken FMLA leave and requested a reasonable accommodation under the ADA. Gembus v. MetroHealth System, 07-3542 (8/27/08). The court assumed, without deciding, that the plaintiff had proved her prima facie case of showing that she had been terminated because of her protected conduct (i.e., taking FMLA leave and requesting an accommodation). However, it concluded that she failed to show that the employer’s non-discriminatory explanation – that she fired for violating its attendance policy – was false or pretextual (i.e., a disguise for unlawful retaliation).

The employer’s attendance policy provided that an employee receives a demerit for every tardiness. Within a twelve month period, the employee is counseled for receiving three demerits, receives a verbal warning for five demerits, a written warning for ten demerits, a final written warning after 15 demerits and is subject to termination after 20 demerits. Demerits drop off following the passage of twelve months since the underlying tardiness.

In this case, the plaintiff had a record of chronic poor attendance. By July 2001, she had accumulated 23 demerits (3 more than permitted under the policy) and was suspended without pay for one day instead of being terminated. However, she reached the final written warning stage of disciplinary action for attendance violations in each of the following years in 2002, 2003 and 2004. In March 2005, she took a two-month FMLA leave because of fibromyalgia and chronic fatigue syndrome. Upon returning to work, she requested to be relieved of her rotating schedule and to, instead, receive steady day shifts. She apparently encountered hostility for making the request, which was temporarily honored while the employer determined whether she was entitled to such an accommodation under the ADA. In the meantime, she continued to be late to work and received another final written warning on May 2, 2005.

On June 13, 2005, despite working stead day shifts, the plaintiff accumulated a total of 21 demerits for tardies within the last twelve months and was terminated for poor attendance on the same day. She alleged that she had been terminated for exercising her statutory rights (to take FMLA leave and request a reasonable accommodation) and not because of her chronic tardiness because she had only been suspended in 2001 when she had 23 tardies (i.e., 2 more tardies than she had accumulated in 2005 when she was fired). She never alleged that her tardiness was caused by her physical impairments or alleged disability.

The court concluded that that the hostility the plaintiff encountered after requesting steady day shift assignments was insufficient to prove pretext because it did not address the admitted fact that she violated the attendance policy. “[I]t does not refute the evidence that [the plaintiff] had twenty-one tardiness points in violation of [the employer’s] policy, which allowed for her termination, or show that tardiness was not the reason fro her termination.”

The court also noted that her request for an accommodation was protected conduct even if it was ultimately determined that she did not have a disability covered by the ADA. “A plaintiff may prevail on a disability-retaliation claim even if the underlying claim of disability fails.” Nonetheless, the plaintiff’s evidence of hostility and the suspicious timing of her termination (within two months of returning from FMLA leave and making her shift request) did not prove that the employer’s explanation was false or pretextual. “Her evidence of temporal proximity alone is insufficient to meet this burden because it does not address [the employer’s] explanation for her termination, tardiness. Furthermore, her evidence of the hostility she encountered when she requested an accommodation to work the day shift does not address [the employer’s] reason for her discharge because it does not rebut the uncontradicted evidence that [she] accumulated twenty-one tardiness points in violation of [the employer’s] policy, which allowed for termination.”

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0528n-06.pdf.

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.

EEOC Issues New Guidance For Employers Under the ADA on Holding Employees Accountable for Performance and Conduct Standards.

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.