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DBTAC-Great Lakes ADA Center Legal Webinar Series The ADA:  Performance & Conduct Issues
October 28, 2008
Sharon Rennert, Senior Attorney Advisor, ADA Division, Office of Legal Counsel

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How the ADA Applies to Performance & Conduct Issues
•	An employee’s disability typically has no bearing on performance or conduct problems
•	Generally, performance and most conduct issues should be addressed in the same manner as done with employees without disabilities

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Role of Reasonable Accommodation
•	However, sometimes an employee’s disability may contribute to performance or conduct problems
•	When this is the case, a simple reasonable accommodation often may be all that is needed to eliminate the problem

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Performance Standards
•	Employers establish job-related requirements, including: 
–	Specific tasks or assignments (essential and marginal functions)
–	Other job-related requirements (e.g., working well with others, serving the public in a professional manner, handling pressure appropriately, meeting deadlines, hours of work) 
–	Production standard

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Performance Standards (cont.)
•	Employers establish methods to evaluate job performance, including:
–	How well employee is meeting basic job requirements 
–	How well employee is performing essential and marginal functions
–	How well employee is meeting production standards

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Production Standards
•	Production standards refer to:
–	Quantitative Standards 
–	Qualitative Standards 
•	An employee with a disability must meet the same production standards as other employees in the same position

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Production Standards (cont.)
•	Reasonable accommodation never requires lowering a production standard but may require employer to provide an accommodation to meet the standard

(Appendix to ADA Regulations, 29 C.F.R. section 1630.2 [n])

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Practical Guidance
•	Supervisors should always give clear guidance to all employees, including those with a disability, regarding the quantity and quality of work that must be produced and the timetables for producing it

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Practical Guidance: Providing Accurate Feedback and Evaluations
•	Supervisors should evaluate the job performance of an employee with a disability in the same manner that they would evaluate any other employee’s performance
–	Failing to provide an accurate evaluation leaves the employee at a disadvantage to improve performance and, if necessary, request reasonable accommodation 
–	Disparate treatment?

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What Should This Employer Do?
•	An employee discloses that s/he has a disability in response either to receiving a lower performance rating, or to his supervisor raising the issue of a performance problem

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Employer Response: Performance Rating
•	Give lower rating and reiterate that performance problem must be corrected 
•	Make clear that the employee earned the lower performance rating, regardless of whether the disability played a role

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Employer Response: Performance Rating (con’t.)
•	May ask why the employee believes that disability plays a role in performance problem and whether employee is asking for reasonable accommodation

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Conduct Standards
•	An employer may discipline an employee with a disability for violating a conduct standard if the disability does not cause the misconduct. 
•	Just be sure that employee is held to the same conduct standard as other employees. 
•	In most cases, the disability will not be relevant to any conduct violations. 

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When Disability Causes/Contributes to Misconduct
•	An employer may discipline an employee with a disability if the disability causes violation of a conduct rule which is job-related and consistent with business necessity AND if other employees are held to the same standard 
	(42 U.S.C. sec. 12112(b)(6), 29 C.F.R. sec. 1630.10 & 1630.15(c), Ques 35 in Reas. Accomm. Guidance)

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Where Employee’s Disability Causes Misconduct
•	Requirement that conduct rules be job-related and consistent with business necessity does not prevent employers from developing and enforcing wide range of conduct rules/standards.

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Conduct Rules that are Job-Related and Consistent with Business Necessity
•	Prohibiting violence or threats of violence
•	Prohibiting stealing
•	Prohibiting destruction of property
•	Insubordination
•	Showing disrespect to clients, customers, and the public
•	Inappropriate behaviors between coworkers
•	Prohibiting alcohol use or illegal drug use

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Ambiguous Conduct Rules: Can You Hold Employee with a Disability Accountable?
Example “Disruptive” Behavior
•	Manifestation or symptom of a disability affecting conduct
•	Frequency of occurrence of the manifestation/symptom
•	Nature of job
•	Specific conduct at issue
•	Working environment

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When Employer Learns About a Disability After Misconduct Has Occurred
•	If employee states that her/his disability is the cause of the conduct problem, and termination is the appropriate form of discipline, the employer may proceed with the termination.
•	The ADA would not require further discussion about the employee’s disability or a request for reasonable accommodation.

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When Employer Learns About a Disability After Misconduct Has Occurred (cont.)
•	If employee states that a disability is the cause of the misconduct, and something less than termination is the appropriate disciplinary action, then employer may ask about the relevance of the disability and whether employee is requesting reasonable accommodation to avoid future misconduct

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Denial of Reasonable Accommodation
•	Reasonable Accommodation cannot be withheld as a punishment for a conduct violation 
•	If an employer refuses to provide an employee with a disability with a reasonable accommodation that could assist him/her in  in controlling his/her behavior and preventing future conduct violations (without causing undue hardship), the employer has violated the ADA

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Practical Guidance: Performance or Conduct
•	Generally inappropriate for employers to focus discussion about a performance or conduct problem on an employee’s disability
•	Focus should be on correcting performance problems and avoiding future misconduct 
•	Emphasizing the disability risks distracting from the primary focus on workplace problem and can risk a “regarded as” claim 
•	Generally preferable for an employee, rather than an employer, to raise disability issue

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Timing of Reasonable Accommodation Requests
•	Although the ADA does not require an employee with a disability to request a reasonable accommodation at a specific time, the timing of the request is important. The employer does not have to rescind discipline or other actions warranted by poor performance or misconduct. 
•	But reasonable accommodation may be required going forward in order to rectify the performance or conduct problem.

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Reasonable Accommodation (cont.)
•	If an employee with a known disability has a performance or conduct problem, an employer may ask whether the employee needs a reasonable accommodation if there seems to be a connection between the disability and the problem 
•	Alternatively, an employer may ask what steps can be taken to improve an employee’s performance or conduct without mentioning the disability or accommodation 

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Attendance and Leave Issues
•	Employees with disabilities must be granted the same access to an employer’s existing leave program as all other employees.

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Attendance/Leave and Reasonable Accommodation
•	If an employee with a disability requires leave beyond that provided for under an employees’ benefit program, the employer may have to grant the request as a reasonable accommodation, if there is no undue hardship (e.g., additional unpaid leave, modified schedule)

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Attendance/Leave and Reasonable Accommodation (cont.)
•	However, providing reasonable accommodation does not mean an employer has to exempt an employee with a disability from time and attendance requirements.

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Chronic, Frequent & Unpredictable Leave
•	Reasonable accommodation does not require that employers tolerate chronic, frequent, and  unpredictable tardiness or absences 
•	Such behaviors:
–	will likely demonstrate an inability to perform one or more essential functions of the job 
–	may enable the employer to demonstrate that any accommodation would impose an undue hardship

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Chronic, Frequent & Unpredictable Leave (cont.)
•	Courts have uniformly rejected any requirement to extend leave indefinitely for chronic, frequent, and unpredictable absences

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Indefinite Leave vs. Extended Medical Leave
•	Indefinite leave is when an employee (or his/her doctor) can give no date of return, or predict whether an employee will return to work 
•	An approximate date of return (e.g., employee will return at the beginning of October) is not indefinite leave 
•	A time period for return (e.g., employee will return between Oct. 15 and Oct. 30) is not indefinite leave

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Indefinite Leave vs. Extended Medical Leave (cont.)
•	Employers may have to grant extended medical leave as a reasonable accommodation to employees with disabilities, absent undue hardship
•	They do not have to grant leave of indefinite duration, which can impose an undue hardship on the employer’s operations and render employee unqualified

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Requests for Reasonable Accommodation After Attendance Problems Develop
•	If an employee with a disability requests reasonable accommodation after attendance problems develop, thus resulting in disciplinary action, the employer may proceed with the discipline 
•	The employer must also consider and, if appropriate, grant a reasonable accommodation unless it would pose an undue hardship.