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EEOC Guidance on Disciplining an Employee with a Disability

Have you ever tried to discipline an employee for workplace misconduct only to hear for the first time that his disability caused the misconduct? Did you then wonder how you should proceed? If that has ever happened to you, then the Equal Employment Opportunity Commission’s (EEOC) recent guidance, “The Americans with Disabilities Act [ADA]: Applying Performance and Conduct Standards to Employees with Disabilities,” will be a valuable tool for you when responding to situations involving performance and conduct standards for employees with disabilities.

The guide has been updated even more recently to ensure that it complies with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which took effect January 1, 2009. As a result, it’s also useful for navigating the ADAAA’s new and more expansive rules.

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How the EEOC guidance can help employers and HR
The overall theme of the EEOC’s guide is that employers have the right to hold all employees accountable to basic performance and conduct standards, regardless of whether they have disabilities. At the same time, the guide reiterates the EEOC’s previous general guidance on reasonable accommodations, emphasizing that employers must make reasonable accommodations to enable workers with disabilities to meet performance and conduct standards.

The guide was issued by the EEOC in response to numerous questions on the topic from both employers and employees with disabilities. While the guide doesn’t have the force of law, it does provide the EEOC’s viewpoints and experience in dealing with conduct and performance standards for employees with disabilities. It reviews relevant requirements under the Americans with Disabilities Act (as amended by the ADAAA) and explains how they govern performance and conduct standards applied to employees with disabilities. Through examples based on actual cases and specific scenarios, the guide clarifies when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation.

The EEEOC guide contains 30 questions and answers on a variety of topics related to conduct and performance standards for individuals with disabilities. The questions are divided into the categories discussed below, making it easy for employers to find particular areas of concern when reviewing the guide.

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Performance standards
The EEOC guide explains that employees with disabilities must meet the same production standards, quantitative or qualitative, as non-disabled employees in the same position. The EEOC suggests giving clear notice of such standards to all employees. While lowering production standards isn’t required, a reasonable accommodation, such as eliminating marginal job duties (or finding alternative duties), may be required to assist an employee in meeting a specific production standard.

Performance evaluation standards should also be the same for all employees. If, for example, an employer give an employee a low performance evaluation and the employee responds that his poor performance is caused by a disability, it can still give him the lower rating. Employers should follow up, though, by making clear what level of performance is required and asking why the employee believes the disability is affecting his performance.

If the employee doesn’t ask for an accommodation, the employer may ask whether there’s an accommodation that may help raise his performance level. The employer may also seek the appropriate medical documentation to determine if the condition meets the ADA standards for disabilities. That conversation may then lead to the interactive process regarding requests for accommodations under the ADA. With the far more expansive interpretation of disabilities included in the ADAAA, employers will likely have to implement an increased number of reasonable accommodations for disabilities going forward.

The EEOC guide also addresses the example of an employee who seeks a reasonable accommodation for a disability for the first time in response to being informed that she’s being fired for poor performance. In that case, the employer may go forward with the termination because it wasn’t required to excuse performance problems that occurred before an accommodation request.

Americans with Disablities (ADA) Compliance Manual

Conduct standards
The EEOC guidance also confirms that under the ADA, employees with disabilities must meet the same conduct standards as employees without disabilities. If an employee’s disability causes the violation of a conduct rule, the employer may still discipline him if the conduct rule is job-related and consistent with business necessity, provided it holds other employees to the same standard.

The ADA doesn’t protect employees from the consequences of violating conduct requirements even though the misconduct was caused by a disability. One example given by the EEOC involves an employee with cerebral palsy who is taunted by his coworkers because of his speech impediment. Rather than report the taunting, the employee destroys coworkers’ property. He may be disciplined for that inappropriate response, although management must also promptly investigate the coworkers’ inappropriate actions once it is aware of them. Thus, if the discipline is something less than termination, an employer may go forward with it, although it should then engage in the interactive process if the employee requests an accommodation.

Issues relating to both performance and conduct standards
The guide states that it’s inappropriate for an employer to focus the discussion of a performance or conduct issue on an employee’s disability. Preferably, the employee will initiate any discussion about his disability. However, when an employer is discussing performance or conduct problems with an employee who has a known disability, it may ask her if she needs a reasonable accommodation.

For example, a supervisor knows that an employee has failing eyesight due to macular degeneration and points out mounting errors that seem connected to his deteriorating vision. The supervisor may ask the employee if he needs a reasonable accommodation, such as magnifying equipment, but the supervisor may not force the employee to accept a reasonable accommodation.

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Seeking medical information
The EEOC confirms that under the Americans with Disabilities Act, employers are permitted to request medical information or order a medical examination when it is job-related and consistent with business necessity. The medical inquiry must be limited to the information needed to determine if the employee is able to perform the essential functions of his job or poses a direct threat to coworkers or others.

For example, if an employee suddenly becomes sloppy in her work, is surly and belligerent, and answers questions in a way that makes no sense, the sudden and drastic change in her behavior reasonably suggests that a medical condition may be the cause of the problem and an employer may perform a limited medical inquiry as a result. The ADA doesn’t require you to request medical information, however. Employers may choose to focus solely on the performance or conduct problems and take appropriate steps to address them.

Attendance issues
The EEOC guidance makes clear that while the Americans with Disabilities Act may require employers to modify their time and attendance requirements as a reasonable accommodation in some circumstances, employers aren’t required to completely exempt a disabled employee from such requirements. The guide also reiterates that employers aren’t required to grant indefinite leaves of absence. When an employee is chronically and unpredictably absent, he may not be able to perform the essential functions of his job or the employer may be able to demonstrate that any accommodation would impose an undue hardship.

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Dress codes
According to the EEOC guidance, employers may require disabled employees to comply with the same dress codes as non-disabled employees. If an employee’s disability prevents her from complying with a dress code, the employer may need to provide a reasonable accommodation, unless compliance with the dress code is job-related and consistent with business necessity or mandated by federal law (e.g., wearing safety gear required by the Occupational Safety and Health Administration (OSHA)).

Alcoholism and illegal use of drugs
The EEOC guidance reiterates that the Americans with Disabilities Act doesn’t protect an employee who currently engages in illegal drug use, but it may protect a recovering addict if all of its other requirements can be met. The ADA may protect a current or recovering alcoholic who can meet its definition of “disabled.” For example, an employee who receives a warning for lateness responds that she was late because of her alcoholism and she intends to seek treatment. While the employer doesn’t need to rescind the discipline, it must grant her request to take leave to enter a rehabilitation program, absent undue hardship.

Confidentiality
The EEOC guidance emphasizes that employers can’t tell coworkers that an employee with a disability is receiving an accommodation. It also encourages employers to train supervisors on the need for confidentiality, as well as how to answer questions about reasonable accommodations provided to disabled employees.

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Bottom line
The EEOC’s guidance is a helpful tool for assessing the often difficult and complicated issue of how to respond when an employee’s performance or conduct problems are, or may be, caused by a disability. It also provides a useful review of the agency’s previous advice on reasonable accommodations, with specific illustrative examples. The EEOC makes it clear that the treatment of performance and conduct standards remains the same even after the effective date of the ADAAA.

Employers should keep in mind, however, that the guide doesn’t have the effect of law. Federal or state courts could always take a different view of a situation than the EEOC, especially in cases involving claims under state or local disability laws, which contain more expansive definitions of disabilities (even after the ADAAA became effective). Therefore, it’s always best to consult legal counsel when faced with a difficult situation involving the application of performance or conduct standards to an employee with a disability.