Best Defense Against Leave Fraud? Continuous Performance

Continuous Performance Management Is Your Best Potential Defense

Always start dealing with the productivity or performance issue, says Eyres. Let the employee bring up the disability. Eyres, who is managing partner of Eyres Law Group, LLP, offered her tips at a recent BLR-sponsored webinar. Consider the following, she says:

• Employees should not be genuinely surprised by candid, constructive performance feedback.
• Good feedback may bring to light unknown barriers to performance.
• Specific performance evaluations help with later analysis of skills, experience, and potential for other job assignments as a reasonable accommodation.
• Regular feedback avoids the “I didn’t know what was expected” syndrome.
• Well-crafted documentation, done contemporaneously with identifying performance issues, enhances the defense that actions were job related and not retaliatory (if employee is injured or sues later).

Distinguish Between Poor Performance and Disciplinary Action

It’s helpful to remind managers and supervisors of the difference between performance issues and discipline issues, says Eyres.

Performance Management	Disciplinary Action
Based on standards for acceptable performance	Based on standards of conduct (workplace rules)
Occurs with regular evaluations and feedback—requires communication	Occurs when a rule is broken or misconduct occurs—requires investigation
Can support a termination without cause, as long as policies are consistently followed and non-discriminatory	Can support a termination, based on misconduct that rises to cause or violation of specific rules in the Employee Handbook or other communications

Mitigating Measures to Define Disability

The issue of mitigating measures has caused confusion. A mitigating measure is “a treatment, therapy, or device which eliminates or reduces the limitations of a disability.” Here’s what makes it confusing, says Eyres:

• Positive effects of mitigating measures must be ignored in determining if an impairment is substantially limiting. Focus on whether the individual would be limited in performing a major life activity without the mitigating measure.
• Negative effects of a mitigating measure must be considered in determining if an individual meets the definition of disability. For example: The side effects from use of medication for hypertension may be considered if they limit a major life activity such as sleeping, concentration.

However, the employer can consider the value of mitigating measures when addressing reasonable accommodations.

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Sample Reasonable Accommodations

Eyres offers the following examples of reasonable accommodations for neurological, cognitive, or emotional disorders:

Attendance

• Allow flexible start and end times
• Modified weekly schedule

Concentration

• Reduce distractions
• Increase natural lighting or provide full-spectrum lighting
• Work from home/telecommute
• Divide large assignments into smaller tasks
• Job restructuring
• Provide memory aids such as schedulers, organizers, etc.

Control over Emotions

• Flexible breaks
• Stress management techniques

Fatigue

• Provide goal-oriented workload
• Reduce tasks

Memory

• Provide job coach
• Provide a mentor
• Allow additional training time
• Provide written checklists

Organizational skills

• Use daily, weekly, and monthly task lists
• Divide large assignments into smaller tasks and goals

Managing Multiple Priorities

• Job coach
• Use of checklists

Final Tips

Remember, says Eyres, the healthcare provider doesn’t have to be a “doctor” or an MD; it can be a nutritionist, acupuncturist, nurse practitioner, or family therapist, for example.

Finally, attendance may be an essential function of the job, but remember that people can have excellent attendance but not be able to perform the job.

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About Your Lead Author:
Susan Schoenfeld, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, and sexual harassment. She provided training and counseling to corporate clients and litigated cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. Prior to private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor (DOL) in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for DOL. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.

Renewed annually until cancelled.

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