HR Management & Compliance

SHRM 2011: Think Twice Before Firing for Misconduct Related to a Disability

Pop quiz. Do you think it’s safe to discipline or terminate an employee for being absent or tardy too often? For driving a truck even though he knew he was likely to have an epileptic seizure soon? For throwing her performance improvement plan across the room and hurling profanities at the supervisor who gave it to her?

“If you live in the western part of the United States, you would have violated the Americans With Disabilities Act all three times,” James J. McDonald, Jr., managing partner at the Irvine, Calif., office of Fisher & Phillips LLP, said today at the Society for Human Resource Management’s 2011 conference in Las Vegas.

The 9th and 10th U.S. Circuit Courts of Appeals — which together have jurisdiction over employers operating Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nevada, New Mexico, Oklahoma, Oregon, Utah, Washington and Wyoming — have issued rulings that employers will violate the ADA if they terminate or discipline employees for misconduct that is related to a disability.

Several conditions that sometimes are “relevant” to misconduct — including bipolar disorder, schizophrenia, obsessive compuslive disorder, post-traumatic stress disorder — will almost always qualify as a disability under the Americans With Disabilities Amendment Act, McDonald noted. “Every kind of quirky behavior” can be protected if it can be tied to qualifying disability, he said.

Employers operating outside of the 9th or 10th Circuits may follow U.S. Equal Employment Opportunity Commission guidance and discipline employees for violating a workplace conduct standard even if the misconduct is related to a disability, as long as the standard is job-related for the position in question and consistent with business necessity, according to McDonald.

For this reason, McDonald recommended that employers update their workplace conduct standards to address:

  • violence and threats of violence,
  • sabotage or damage of property,
  • insubordination,
  • harassment,
  • sleeping on the job,
  • attendance and tardiness, and
  • drugs and alcohol.

Policies should forbid “reporting to work with prohibited substances or alcohol in your system” rather than “being under the influence,” McDonald said, because employers can prove the former through drug or alcohol testing but can’t prove the latter.

Employers also should prevent supervisors and HR staff from learning about an employee’s disability, either through personnel files or friendly inquiries. “Ignorance of a disability is a good thing,” he said. “If you don’t know about it, you can’t discriminate on the basis of it.”