Ladies and gentlemen, thank you for standing by and welcome to today''s teleconference entitled, "Performance versus disability, what is the difference?" At this time, all participants will be in a listen only mode and later we will conduct a question-and-answer session. At that time, if you''d like to ask a question, you may do so by pressing the 1 on your touch-tone phone. As a reminder, this conference is being recorded today, June 19th. I''d now like to turn the conference over to Mr. Peter Berg. Thank you very much.
Thank you very much and welcome everyone to the ADA Audio Conference Series which is a collaboration of the 10 regional Disability Business Technical Assistance Centers, DBTAC''s, or what you may know as the regional ADA centers. You can reach your local ADA center by calling 800-949-4232. Just as a reminder, today''s audio session is being recorded, and the transcript along with the audio archive of today''s session will be posted to the ADA audio Website, which is www.ada-audio.org. You can find additional information about upcoming sessions as well as visit past audio conference archives, both the written transcript from these sessions, along with the audio archives, that are available for past sessions. Today''s presentation will follow the format of many of our audio conferences. Our speaker will do her presentation and then we will open it up to questions. Today''s session entitled, "Performance versus Disability, what is the difference?" we''re pleased to have with us someone that has been with the audio conference as a speaker on many occasions and we are always pleased to have her with us. And that is Sharon Rennert from the Equal Employment Opportunity Commission. Sharon is the senior member of the EEOC ADA team and she has participated in all of the guidance material that the EEOC has produced on the Americans with Disabilities Act. Sharon, as I mentioned, has been with us on numerous occasions and is a great resource to the 10 Disability Business Technical Assistance Centers and we are very pleased she is able to join us today. With that, I will turn it over to Sharon.
Thank you so much, Peter. And good afternoon or good morning, I guess depending on where people are listening in. I will trust that there are people besides Peter somewhere out there. Today''s topic, performance issues and the ADA, I''m also going to discuss conduct issues as well. Interesting title, "Performance versus Disability," I don''t know that they''re quite oppositional. In fact, for most people with disabilities, neither performance or conduct are issues, that the disability does not affect performance, it does not affect conduct, and these are just not issue that will come up in most workplaces. However, there are exceptions, there are times that disability may indeed affect performance and conduct, or may appear to. And that''s what our topic is this afternoon, to talk about how these issues can come up, talk about what people with disabilities should be doing when they recognize that their disability may be affecting performance or conduct, talk about what employers should be doing, how these could be coming to their attention about how they should respond to it. And about the interplay with the reasonable accommodation obligation, what happens when there are performance or conduct problems and a person also needs reasonable accommodations? So I want to sort of review lots of different things this afternoon. Before we open up, as Peter says, to your questions on these topics. But let me start with performance standards. I''ll talk about conduct in a few moments but let''s talk about what happens when there may be issues around disability and performance standards. And as a starting point, as a reminder, the EEOC has said that under the ADA, employers never have to change their performance standards as a form of reasonable accommodation for individuals with disabilities. Put another way, that means that an individual with a disability must meet the same performance standards as all other employees holding the same job. And when we talk about performance standards, we''re talking about two types of standards here. First of all, we''re talking about quantitative standards. When an employer sets numerical requirements, this may be factory assembly line-type situation, many kinds of office jobs may have numerical requirements, quantitative requirements, doing a certain number of reports, reviewing a certain number of cases, doing a certain number of audits. Those kinds of numerical requirements must be met by everybody, including people with disabilities in order that the person be considered qualified. So that''s one kind of performance standard. Obviously, that''s an objective standard because there''s a certain numerical requirement. The second kind of performance standard would be qualitative standards. Qualitative. For example, the kind of standards a supervisor would apply when doing annual performance reviews. Now, unlike quantitative standards, there can be an element of subjectivity to qualitative standards but generally employers are going to have certain guidelines on how they will judge and assess people''s performance. So for example, many employers, in terms of using a kind of rating system in doing performance evaluations, that people are excellent or above average, average, below average, and usually employers will have descriptions of what it means for an employee to be ranked in each of those kinds of categories. And so when we talk about an employer does not have to change, does not have to lower a qualitative standard, what we''re saying, for example, is that if a supervisor is following those guidelines an employer sets, and it rates an employee with a disability as average, the employer would not have to raise that rating up to, say, above average if the supervisor''s followed the guidelines and a non-disabled employee would also be ranked as average for the same kind of performance, for the same quality of work. So whether quantitative or qualitative performance standards, those are things that employees with disabilities must meet to be considered qualified. Now, as everybody knows, reasonable accommodation can come into play because an individual may need an accommodation to assist him or her in meeting a performance standard. And one of the ways that performance issues and disability can come out in the workplace is sometimes the first time that an individual knows to perhaps request accommodation, or the first time an employer knows that an individual may need an accommodation, can come when the employer provides feedback or an evaluation of the individual''s performance. Whether it''s done fairly and formally, a supervisor sitting down with an employee to let him or her know that there''s a problem, again, be it quantitative or qualitative performance standard, or maybe at a semiannual or annual performance review, but that may be the first time that the employee is aware that there really is a performance problem or how serious the problem is. And that may indeed spur the employee to ask for accommodation. And so at that moment, I think a lot of employers are kind of confused based on questions we often get here at EEOC. What do they do? Let''s take the situation of an annual performance review, they are sitting down with the employee, the employee has had problems, and let''s say they are going to rank the person as average. That''s based on the guidelines where this employee should be ranked for the quality and quantity of work he or she has done the past year. And the employee says well, all right, you''re giving me an average rating but I have this disability. And the disability is really causing me problems. That''s why my work may not be everything you think it should be, supervisor. So I want you to know that. I think that at that point, in essence, the employee needs to say more than simply he or she has a disability. Because let''s take the perspective of the employee with the disability. As I stated already, the employee cannot be given a higher rating when that is something they''re going to have to, when there''s a performance standard that they must meet, they cannot say based on my disability, if I didn''t have the disability it would have been a better rating so just give me the higher rating. As we know, that''s not a form of accommodation. So for the employee with the disability, this is an opportunity to think about whether you want to request a reasonable accommodation. Is there something that you think that could enable you to improve your performance, something that there really is a way the disability is negatively affecting performance that with an accommodation, you might indeed do better, and this is the opportunity to ask for something. From the employer''s perspective, if the person just mentions the disability, I think it is important for employers to emphasize and be clear about what the standard is that the individual has not met. Whether it''s quantitative, qualitative, to be as clear as precise as possible about what accounts for, in my example, the average rating. What is it that the person did not do as well on? Where can the person improve? How can the person show improvement? But more specific, the supervisor can be, that''s the greatest assistance to the employee with the disability to understand where he or she is standing right now, and how he or she might improve, and to even help the person think about accommodation. So the first thing is for a supervisor to be as clear as possible. If the person simply announces that he has a disability, I think that what may be helpful at this point is for the employer to say, the supervisor, to acknowledge what they''ve just been told, but to, again, be clear with the person that regardless of disability, here are the standards an individual must meet. If the individual does not specifically ask for something, in many cases employees may just announce a disability, which is not the same as precisely asking for the employer to do something. I think it makes sense for an employer to go ahead in that situation and ask the employee specifically, you''ve told me you have a disability, are you asking for accommodation? Is there something that you think it would be helpful for me, the supervisor, or for the employer to provide to you to help improve your performance? To help bring your performance up to an acceptable level? I always think it is the better thing for both employer and employee is to be clear with one another, and not to kind of play a game with each other. So if the employee has not specifically asked for something, then I think under those circumstances where someone''s put their disability on the table, so to speak, I think as an employer, it might be advisible to go ahead and ask, Do you need something from us? If the person says no, I''m just telling you I have a disability, I think that''s the cause of the problem, then again, I think the supervisor simply needs to reiterate what the performance standards are, where the individual is not meeting a standard, what the employer''s expectations are, and of course to document the conversation, to document that the employer went ahead and asked about the need for accommodation, the employee said no, he or she does not need one, and the supervisor made clear about the performance standards. On the other hand, if the employee says yes, I do think I need something and they start articulating what it is they need, of course now we''re in the interactive process, that discussion, and it may be more than one discussion between the employer and the employee. To allow the employer to be clear about, first of all, what is the disability, and as most people listening in probably know, the employer will be entitled, if it''s not clear that it''s a disability as the ADA defines it, the employer may discuss with the individual to get a sense that it is a substantially limiting impairment, and if necessary the employer also may request medical documentation. So that may be part of the discussion. The other part is being clear on how the disability is affecting performance and what possible accommodations may help with the situation. And here, again, the employer and employee will start this discussion, others may be consulted. The people hosting this audio conference, the regional ADA centers are one obvious group that can be contacted by either the employer or the employee for ideas. If they''re not certain about what may be appropriate accommodations, the Job Accommodation Network is another source. People are welcome to call me, I''ll probably refer you to both of the organizations I''ve just mentioned. But the important thing, I think, is that the, especially for the employer, to be really clear in their understanding of how disability is affecting performance. Because it''s very hard to come up with ideas about accommodations if, as an employer, you''re not really clear what the problem is. And how the disability is truly affecting an individual''s ability to meet a certain performance standard. So sometimes it may be very obvious, sometimes it may need a bit more exploration as part of the interactive process. So if there is a request for accommodation or in a response to an employer saying specifically, will you need accommodation, that''s how you may get into this discussion of accommodation. But none of that, none of this, will stop the employer from going ahead and giving the employee the rating that he or she has already earned. That the accommodation is always about looking ahead, it''s not about looking backwards. To change somebody''s evaluation, which is always about past performance, to say that an employer has to hold off on that rating, or has to raise it, then you''re talking about doing something that''s going backwards, and that''s not reasonable accommodation. So in some situations we can have a person who gets a lower rating because that''s what he or she has earned, based on performance, but with a discussion about reasonable accommodation now, there may be accommodations that absent undue hardship, the employer may need to provide in the hopes that this will enable the person to improve performance, so hopefully a year from now the person will be able to get a higher rating. So that''s important to remember, because I think for a lot of employers there''s a confusion still about this idea do I have to, you know, not rate somebody or do I have to go ahead and raise the rating? And the answer is no. Reasonable accommodation is about going forward. Now, sometimes, this is, I think, very important for people with disabilities to think about, asking for disabilities can be a difficult decision sometimes to make. Many people with disabilities have had bad experiences when they''ve asked for accommodations, and that can make them a little wary of asking, again, be it the same employer or a new employer. But there are risks about not asking when the employee is recognizing that the disability is having an impact on performance. And the risk here is that if you wait too long, then the employer may be able to turn down any requests that because in essence the request comes too late. What I''m addressing here are the situations where employees have been put on notice, there are very serious performance problems, they''re warned, they''re counseled, they''re given opportunities to show improvement, the employee does not show improvement. Throughout this period, the employee with the disability never asks for accommodation or even if the employer has asked about accommodations, sort of offered to enter a discussion about accommodation or offered something, and the employee turns it down, no, no, no, I don''t need accommodation. But in either situation, turning something down or just not asking for it, the employee keeps being counseled that performance problems continue to exist until we unfortunately get to the day with the employer says, well, we''ve given you all these chances and performance is not improved and now we''re terminating you. And at this point the employee thinks well, I have nothing left to lose, you know, now I will ask for accommodation. And that''s just too late. That''s too late to be asking. Because, again, remembering that accommodation is only about looking ahead, looking to the future. There is no future at this point. The person''s being terminated. And when an employee waits and asks for accommodation at that point, in essence, what they are asking for at the minimum is don''t fire me. But again, we go back to the principle that an employer does not have to change or lower or modify a performance standard and the consequences of not meeting the performance standard, and the consequence right now is that the person in effect has earned termination. And so to wait until this point, it is too late. And the employer can proceed with the termination. And unfortunately, we still see too many of these cases, in my view. We''ve had a number of court cases that involve just this kind of scenario and the courts have uniformly agreed that it is too late to make your request for reasonable accommodation at the point where the employer is entitled to terminate the employee for poor performance. So while it can be difficult for employees to sometimes ask for accommodation, that can be a difficult decision to make. I think employees need to bear in mind the consequences if they wait too long. But one of the things that can help employees to make that request, I think, is, goes back to the employer, and for employers to really want to have an environment that is open to people making requests for accommodation goes back to appropriate training of supervisors and managers about recognizing a request for accommodation, and treating that request appropriately. Because it''s in the employer''s interest as well that an individual request accommodation as soon as he or she realizes there is a need for it, and the employer can do something to help foster an environment where employees will feel comfortable doing so. Remembering that just because somebody''s asked for accommodation does not mean the employer is automatically required to provide any accommodation or the accommodation that''s been asked for, but I do think that based on the cases we see at EEOC, based on cases you see in court, it''s amazing how many times you wish that things could have been handled differently way back when, when these things were really just beginning, before they really kind of get out of hand. So for the employer to think about, and it''s a training issue, making sure supervisors, managers recognize a request for accommodation, understand how to handle it, understand that just because they have a request for accommodation does not mean they''re going to lower a performance standard, but to be open and welcoming of those requests and to appropriately engage in the interactive process or if it''s not the supervisor''s role to engage in the interactive process to promptly turn that request over to whoever is designated to handle such requests within the employer. Okay. The other thing I want to say about performance and reasonable accommodation, before we move to conduct standards, is to remind particularly employers that another way that reasonable accommodation can come into play here is a need for accommodation that an employee might need in order to listen to your performance evaluation. We''ve seen a number of cases where employers seem to remember that accommodation might be needed to help perform an essential function but some employers have turned down requests, say, for example, a deaf employee who says I really need a sign language interpreter to help me when I do my annual review with my supervisor, that in order to fully understand the supervisor''s comments, in order for me as the employee to give my own feedback and my comments on the supervisor''s evaluation, I need a sign language interpreter. And some employers are turning down such requests, first of all, we hear, they have a mistaken belief we only have to provide accommodations to help people perform an essential function and a performance review is not an essential function. Remember that the obligation to provide accommodation goes beyond helping people perform the essential functions. It is broad enough, the function, to include accommodations so that people can effectively engage in things like performance reviews. Similarly, we''ve had some employers who say well, like with a deaf person, we''ll just write notes back and forth or we''ll just type notes to each other on a computer. I think all of us listening in at one point or another have both been evaluated or done evaluations and these are usually more than a few brief sentences. Oftentimes they do take a while, they can involve a certain amount of complexity. Sometimes there can be very fine types of points that need to be made. And that''s not really conducive when you''re writing notes back and forth or typing notes back and forth on a computer. Those are great that those two methods are great when it''s a very short, simple kinds of conversations, but when it''s a performance review, I think that if someone needs a sign language interpreter, that''s going to allow for something far more akin to non-deaf individuals having a full conversation. So I think employers are going to have to provide sign language interpreters under that type of circumstance. Other accommodations that might come up for people with visual impairments, there may be a need for, normally it''s a written evaluation that may be given to people, maybe something in large print, maybe something in Braille. So the idea here is just for employers to be aware of the obligation to provide accommodation to assist people in having a meaningful performance review. And that would go for informal discussions as well on performance, not just the annual review but if somebody is running into problems and there needs to be counseling, again, there may be a need for accommodation to ensure that the employee understands what''s going on, where the problems are, what needs to be done, and so that the individual also can effectively communicate back to the employer their story, their side of it, you know, where they may be needing some help. So that''s sort of covering very broadly performance standards. The other area I want to address are conduct standards. And by conduct standards, what I''m talking about are very broadly not so much the actual job duties, or the quantitative requirement to do my job or how my job will be evaluated, but more behavior and conduct issues that kind of are present for everybody in every workplace. And this can encompass quite a broad range of issues. Certainly it can encompass some of the more serious kinds of conduct problems, violence or threats of violence, stealing or destruction of property. It can involve acts of insubordination, for example. It can involve misuse of workplace property, for example, many workplaces provide employees with computers but those are for employment-related purposes. Somebody who is using it against the rules for accessing pornography, or those kinds of things, or who uses company e-mail in an inappropriate way, say to send harassing kinds of e-mails to coworkers, all of those are conduct issues. They''re not going directly or don''t address directly address people performing certain job functions, but how people perform generally or how people act generally in a workplace. So that''s what we''re talking about in terms of conduct. And again, as I said with performance, for most people with disabilities, this just isn''t an issue. The disability does not at all impact one''s conduct or one''s behavior. And even if there is a conduct issue, say, you know, somebody with a disability, there is a conduct issue, in those cases overwhelmingly the disability has nothing to do with it. People''s disabilities no less or no more than anybody else can get into trouble and just because somebody has a disability does not mean that the disability is the cause of the misconduct or the cause of the behavior problem. So people with disabilities as a general rule can be held to the exact same conduct standards as all other employees, and that means that when someone with a disability violates an employer''s conduct standard, they can be held to the same consequences. So if it''s a warning, if it''s a suspension, whatever it might be, up to and including for the most serious of offenses, termination. But what happens in those few situations, and sort of the minority of cases, where the disability does affect the conduct, or the disability is causing or contributing to misbehavior or conduct violations? What happens here? Well, here, under the ADA, an employer in this situation will be able to hold the person to account, will be able to apply the conduct standard and its consequences as long as the conduct standard is job-related and consistent with business necessity. So for conduct standards, the only time an employer is going to potentially have to kind of think about why do I have this conduct standard, what''s its purpose, how does it relate to the job, is where, number 1, an employee with a disability is violating a conduct standard, and number 2, the disability is causing the misconduct. If you''ve got those two things met, someone with a disability is engaging in misconduct, and the disability is causing, contributing to the behavior/conduct problem. Then an employer, as a legal matter, may have to justify why it is applying this particular conduct standard to this employee. Now, the EEOC has already recognized that certain types of conduct standards will always meet this requirement of being job-related and consistent with business necessity. These are whenever anybody engages in violence, in a threat of violence, in stealing or destruction of property. EEOC has recognized in our guidance on reasonable accommodations, so for those of you who want to look it up, if you go to the EEOC guidance on reasonable accommodation, which is at www.EEOC.gov and look up guidance on reasonable accommodation, those four types of misconduct, the EEOC has identified as always meeting the job-related business necessity standard. Now, that doesn''t mean that other types of conduct rules can''t meet the standard, it''s just that EEOC hasn''t already officially identified them in our guidance. But clearly there are going to be other conduct standards that employers are going to be able to show, meet business necessity. For example, I think many serious kinds of insubordination, obviously employers have a great interest in workers showing respect for supervisors and managers that employees cannot simply scream and yell and curse a supervisor no matter how they feel, no matter what the provocation. They can''t do things like that. And that there is, this is related to just about, I think, everybody''s job and the sort of business necessity of maintaining a certain order, a certain respect in the workplace, the consequences that would occur if one did not so that holding an employee with a disability accountable for such an and of insubordination I think would meet the job-related and consistent with business necessity standard. But the thing here is that while I think for many employers, many types of conduct standards will be easily able to show business necessity. Sometimes it may require some thought. And let me offer the following example, or really kind of two examples to show how context can change how we view whether a certain conduct standard meets business necessity or not. And let''s take the case of a person with Tourette''s Syndrome. I think as most people know, Tourette''s Syndrome can involve bodily movements or certain kinds of oral guttural manifestations. These are not really controllable, that they just kind of come out, and so in my example, we''re going to have an employee who wants to work at a bank, as a bank teller. And he has a more serious form of Tourette''s Syndrome, such that all kinds of jerking sort of head movements, arm movements, as well as making certain kinds of grunting or barking kinds of sounds, and so the person, you know, is otherwise qualified for the job, can do all the essential functions, starts working as a bank teller and indeed no problem with actually performing the essential functions of the bank teller, but pretty quickly the symptoms, or manifestations of the Tourette''s Syndrome come into play and in terms of customers having a difficult time interacting with this teller, but also other bank tellers having a difficult time. It is quite loud, it''s quite distracting and so other bank tellers are having difficulty performing their jobs. As most of us have been in banks, it''s not a private office, it''s in an open area, a number of bank teller, they all work in the same room. And so this person who has so many, it''s not like an occasional tick, it''s not like oh, it''s one every other hour, this is fairly constant. And the bank, you know, tries to work with the individual, they talk about it, they see what they might be able to do, but really there isn''t anything, there isn''t an appropriate accommodation. This is an instance where the conduct standards, the ability in a professional manner to interact appropriately with the customers and also not interfering with your coworkers'' ability to do your job, the bank could argue, could maintain that it is job-related and consistent with business necessity that a bank teller not interfere with their colleagues, be able to appropriately interact with customers, and that this particular individual, due to the Tourette''s Syndrome, can''t meet that standard. And at that point, with no reasonable accommodation that can address those concerns, this individual would not be qualified for that job. But let''s change the facts a little here. Same person with Tourette''s Syndrome, same kinds of symptoms or manifestations, all that stays the same, but the work setting changes and now they are working in a warehouse setting, it''s a very noisy setting, it''s lots of noise, lots of movement going on, so that employees can''t easily hear each other anyway because of all the surrounding environmental kinds of noise. You''re not interacting at all with the public, there are no customers or clients that come back here. The same person with Tourette''s Syndrome can perform the essential functions of his job, again performance itself is not the issue, he can perform his job just fine. But this time, in this particular work setting, the very same symptoms that posed a problem in the bank setting, that posed a problem meeting the conduct rules there, do not pose the same problem here. And so as we analyze this kind of situation here, I don''t think it would be so easy to maintain that there is a conduct problem due to disability. It certainly may be unusual and different what this person experiences due to disability, but in terms of disrupting coworkers where what we would see in this environment is it''s not disruptive because it is a very noisy, active, things going on all the time, that coworkers don''t even notice this person if they''re making their guttural or barking sounds because there''s just too much else going on and there aren''t clients or customers to be concerned about. So suddenly in a different setting, even though it''s the same symptoms, we do not find a problem due to conduct. And I offer these sort of two contrasting examples to make it understandable both for individuals with disabilities and employers, about how you can''t simply say here''s our conduct standard, we apply it to everybody, it obviously has to have business necessity. There can be working situations where that conduct rule really isn''t so necessary to a particular individual. Something like violence or a threat of violence or stealing, there it doesn''t matter what the setting, what the job is. Those are always going to have business necessity. Somebody who is screaming or yelling or cursing at a supervisor really it isn''t going to matter what the setting is, something like that is clearly going to be out of bounds and going to be a business necessity reason to want to maintain a certain kind of conduct, a certain kind of relationship between an employee and the manager. But here in terms of are you really distracting your coworkers, if the environment''s already distracting, then you really can''t lay that on the disability. So in certain instances, employers will need to think a little bit about particular conduct standards and is there a business necessity issue here. But again, only when the disability is causing or contributing to the conduct problem. Now, again, as with performance issues, when conduct issues are raised to employees, that may be the first time that the employee will seek out reasonable accommodation. And again, just like the performance issues, accommodation is always looking forward. So, if somebody has violated a conduct rule, it is due to disability, that conduct rule is job-related and consistent with business necessity, then with the violation of the conduct rule, then the employer is free to go ahead and carry out whatever consequence there is. So if the consequence is a warning, you give the warning, but then the employer must address the request for accommodation that''s come in. You don''t withhold the warning, you don''t revoke it, you don''t say we''ll wipe the slate clean and start over. Employers can do that if they want, but they''re not obligated to do that. They can go ahead and issue the warning that''s merited by the misbehavior. But just because the person has engaged in misconduct does not mean the employer can ignore a request for accommodation and they would now need to engage in an interactive process, again, maybe focusing on the disability, I''m sure focusing on the connection between the disability and the misconduct, and looking at what might be an appropriate form of reasonable accommodation to enable this individual to not again engage in misconduct, to help them to comply with the conduct standard. And again, lots of different organizations and people to turn to help kind of brain storm about what might be appropriate, but as always, from the employer''s perspective, very important to be clear what the conduct standard is, in what way the person did not meet it, what the employer''s expectations are, what conduct is expected from the employee with or without reasonable accommodation, always that the employer needs to be very clear about those things. And on the employee side, if there is a need for accommodation, again, remembering that it is important to ask as soon as possible, it is never a good situation to be in as an employee first of all where you are now facing consequences of misconduct, but certainly not waiting until the consequence of any misconduct is termination. Now, certain types of misconduct are so egregious they may well result in termination immediately, something like committing an act of violence or destruction of property. Other things may result in something less drastic say a warning or suspension, but those are the moments if request for accommodation, if it''s an employee with a disability recognizes that there may be a need for accommodation, that''s the moment to speak up. If you haven''t already spoken up, you want to do it now. You don''t want to wait until the consequence is termination because just like we discussed with performance, if you wait until you''re being terminated, it''s too late. And there will be no accommodation at that point. So very important to bring up any need for accommodation to cooperate with the employer, to really explore what may help in such instances. Again, as with performance, employers may need to provide reasonable accommodations like sign language interpreters if they are discussing conduct problems with an employee who might need an accommodation to effectively discuss a particular conduct problem and to engage in an appropriate discussion. So employers need to be open and aware of such requests for accommodations to just talk about and deal with the specific conduct problem, apart from any accommodations that may be needed to ensure that a person can conform to whatever conduct rules are expected of all individuals. Why don''t I stop there, because I think we''re at about the halfway point. This sort of touched on the major areas and I''m kind of suspecting that people out there may have questions and I''d love to get to those. So Peter, can we open up the phone lines?
Excellent, Sharon. We''ll bring Lance in to give instructions and while we''re waiting for people to get the calls lined up, I have an electronic question that was submitted. So Lance if you could give instructions, please?
Certainly, ladies and gentlemen, we will now take questions. If you do have a question at this time, to register in the queue we ask that you press the 1 on your touch-tone phone.
Sharon while we''re waiting for folks to get those questions ready, electronic question that was submitted asked about whether or not reasonable accommodation could include having someone such as a job coach or an advocate sit in on a performance review or evaluation meeting?
I think it certainly could. I mean, for certain people, I am not sure what the questioner meetings by advocate, but certainly in terms of a job coach and what I''m thinking of now is somebody, say, with mental retardation or certain kinds of very serious intellectual cognitive disabilities, who may have difficulty understanding what has gone wrong, what the employer is trying to get at, and part of the role of the job coach could well be to help them understand here''s what''s expected, here''s the way the employee is not meeting those expectations. So this goes to having effective communication. It''s not enough for an employer to just sit down and talk to someone who really isn''t understanding, due to a disability. It''s like the deaf person without the sign language interpreter who may not fully understand what''s going on here. So I definitely think in terms of a job coach, not being sure what''s meant by an advocate, I''m a little more hesitant to say in all instances, yes, that''s who should be here. This is not, you know, as a lawyer, how I may think of advocacy, not necessarily what I would, the kind of interaction where I think one may need that. But if there is something about the disability and the difficulty of the individual fully and effectively understanding what the employer''s trying to get across, then to have somebody, a job coach or if that''s what''s meant by an advocate, I think that would be appropriate.
Alright, great. Lance, do we have our first question ready?
Okay. Our first question comes from the line of Theresa from EKU.
Go ahead with your question, please.
Is there a question from EKU?
No, we didn''t have a question at this time.
Okay. So we''ll move to Lynn from MetLife Disability.
I don''t know that we had a question.
Okay. We''ll try Debbie from the DCAB.
Hi, Sharon. This is Debbie in Hawaii.
Hello.
And the question I have is in some instances with state employees that are being disciplined for inappropriate behavior, at the point where they''re receiving their discipline, then they disclose that they have a disability, I was wondering if you had some advice or some information you could provide about how the employer can deal with that situation?
Certainly. Again, I think it''s very important when somebody is disclosing disability in response to an employer addressing either a performance problem or a conduct issue, I think the employer needs to reiterate and be clear about this, sometimes it''s surprising on the employer''s side we think we''re being clear but maybe we''re not. And to really think about that, to be absolutely specific and clear what the precise performance problem is, or what the precise conduct problem is, to say in response to somebody disclosing a disability, I understand that we''re going to talk about that in a moment, but whether you have a disability or not, here''s the performance standard you''re not meeting that you have to meet. Or, if it''s a conduct standard there may need to be a discussion going along the lines of my example with the person of Tourette''s Syndrome, you need to make sure first of all, is the disability affecting conduct. Because if it''s not, then you just simply state, here is our conduct standard, you''re not meeting it and you must meet it. In those few instances, and relatively they will be in the minority, in those few instances where disability is affecting conduct, then an employer may need to determine that that conduct standard is job-related and consistent with business necessity. If it is, then the employer must say to the person, I understand you have a disability, we''ll get back to it in a moment, but you must meet the conduct standard. So when somebody comes out with they have a disability, generally you''re going to want to make sure that the person knows they still have to comply with performance standards, they still have to comply with those conduct standards that are job-related and consistent with business necessity if the disability is involved. But now the person''s told you about disability. As an employer, I would recommend following up with, are you asking me for accommodation? Because really, that''s the only issue here. I mean, otherwise if we think about it, the fact that the person is disclosing disability, I mean, in and of itself, okay, that''s interesting, but it doesn''t really mean anything, it isn''t really advancing the dialog that''s going on here. I think by implication, when people are disclosing they have a disability, they are not quite asking for accommodation, but by implication, I think they are. And I think it''s far better for everybody, including the employer, to not kind of dance around, but to let''s, you know, get right on the main issue. You''ve just told me you have a disability, are you asking for an accommodation? If the person says no, I''m not, I just want to tell you I have a disability, then I think the employer should respond with again being clear here''s the conduct of performance standard, you must meet it, here''s my expectations, if you think you need help meeting it, come back and talk to me. Know that you''ve got to improve. If the person says yes, I am asking for accommodation, when the employer says are you asking for accommodation, the employee may well say yes, I am. And then the employer needs to say well, what are you asking for? And there''s the beginning of your interactive process. To see what it is the person may need, what it is that the employer might be able to provide here. But again, the employer may need to remind the employee that what we''re talking about, if we''re talking about accommodation, is going forward. What''s passed is passed, you have the consequences of any past performance or conduct problems, that''s going to stay as is. But it''s about a discussion of accommodation in the future with the objective being to enable the person to meet performance expectations or to enable the employee to meet any conduct requirements.
Thank you.
You are welcome.
Next question, please, Lance?
Certainly, the next question is from Rick, state of Indiana.
Hi Peter, hi Sharon.
Hi.
The question I have was do you have any guidance for an employer who''s waiting for reasonable accommodation to go through like, for example, a computer or something like that, and whether or not you have any kind of guidance as to how long is long enough to wait for a reasonable accommodation?
Well, I certainly think when there is a request for reasonable accommodation in the context of there''s been a performance problem, and I''m assuming it''s a performance problem when you offer an example about waiting for a computer, I think, you know, we all know that requests for accommodation should be handled as quickly as possible, taking into account that some requests you can handle probably in five minutes and others may make longer, certainly somebody who needs a computer, that''s going to take a bit more time. You always want to handle them as quickly as possible. But where there''s a performance issue, I think as an employer you want to handle them even more quickly. The reason being, there''s a performance problem. And once somebody, you can hold them accountable for the past performance, but what are we going to do in terms of going forward? Well, now the person has asked for accommodation, and based on your question, the employer''s agreed, yes, you know, you need one due to disability and in this case, some kind of computer or some kind of specialized equipment is needed to use the computer, and without it, almost by definition, based on the situation, there''s going to continue to be performance problem. Well, certainly the employer cannot hold the person accountable right now for continuing performance problems that would involve the computer. The person''s made a request, and knowing that, the employer can simply say, you know, let''s say it''s five months later, whoops, never got the computer in so we''re still going to put you on as a lower rating or we''re going to mark down that you''re not performing well, that the employee cannot do. It''s in everybody''s interest, including the employer''s to really expedite these requests for accommodation when they come in as a result of discussion about performance problems, the same would be true if it was a conduct issue. I don''t know where the holdup is, I certainly think that be it the supervisor, if it''s an employer that has, be it in human resources or elsewhere, someone who is really charged with overseeing disability issues or accommodation issues, there really needs to be very proactive, hands-on, you know, checking constantly where are we with this, what''s taking so long. In the interim and in recognizing if someone, say needs a computer, that is not likely to happen in just a few days, what does the employer do in the interim? Well, as I said, I''m going to hope that it a reasonably short time until that accommodation is in there. But I think you look for ways to address it, address the situation while it''s not. So number 1, are there other things that the employee could be doing that they could do without the computer, that they could perform well? In other words, maybe temporarily shifting around certain job duties, you know, the employee with the disability may take on coworkers'' responsibilities and somebody else can do the extra computer work while you''re waiting for this accommodation to arrive. You know, it''s hard for me in the abstract to say how long is too long when I don''t know where the problem is originating. But based on the question, I''m assuming number 1 that the employer has agreed accommodation is needed, they''re indicating they''re going to provide it, and something has kind of gummed up the works. But that''s, you really don''t want it going on too long because as I say, in the meantime, either certain work is not being done or it''s being performed by somebody else on a temporary basis and you really don''t want that dragging on. And you really can''t hold the employee with the disability accountable at this point when you can start evaluating them again is once the accommodation is in place. So I know sometimes it''s hard and things come up, but I really think employers need to stay on top of accommodation requests in this type of circumstance.
Thank you.
Thanks, Rick. Got a question here submitted online, and this one reads what are the limits on an employer to reorganizing job responsibilities to accommodate an employee who cannot perform the job duties?
In terms of reorganizing job duties, I mean, remembering that an individual with a disability must be able to perform the essential functions of any job with or without reasonable accommodation, so when the person writes in about reorganizing, if the individual as a reasonable accommodation needs the removal of marginal functions because due to disability the person can''t perform certain marginal functions, that''s a form of reasonable accommodation and absent undue hardship, the employer must do that. On the other hand, sometimes the solution can be simply not removal of a marginal function but substitution of a different marginal function. If the person has a problem performing one marginal function due to a disability but could take on a different one, then that could be done as the accommodation. If reorganization is implying moving out essential functions, well that''s something the employer does not have to do because that''s part of what we measure in terms of determining that somebody can perform or is qualified for a particular job, is the ability with or without accommodation to perform essential functions. As a practical matter, I know it does come up for many employers, again, sort of temporarily, removing an essential function. And I''ve certainly heard it around performance issues and it kind of goes back to the previous question with the computer. If for right now, we''re waiting for that computer, that''s definitely part of an essential function, it really doesn''t make sense to have the employee perform that essential function right now because they''re not doing a good job. So in that kind of circumstance, you''re not permanently removing an essential function, it''s more a matter of practicality. And I think an employer should do that, but I think the employer should make clear to the employee it''s temporary, ideally that you''re putting a kind of time limit like we''re going to do this for two weeks until we get the computer, and substitute something else if at all possible that the person could be doing. So it''s not simply always taking away, but again, with the idea of reorganizing. If, you know, for a couple of weeks while we wait for this computer to come or for four weeks while we wait for it to come, you know, you can''t perform one essential function but we will substitute something else so that we don''t burden too much of your fellow colleagues, we''ll just switch things around. I think that could be done, too, on a temporary basis. But again, all the more reason for employers to get that permanent accommodation as soon as possible, and to keep involved. Because the worst kind of situation is where this sort of drags on and then people kind of assume it''s now how we''re going to do things. I''m always surprised as I get the calls that begin well, one year ago we decided to do something for two weeks and now it''s a year later. And that''s not a good situation for anybody. So you really want to stay on top of it. And I hope that answered the person''s question.
Excellent. We''ll go to the next question, please?
Okay, our next question is from Eileen from Miami Dade County.
Hello, can you hear me? My name is Phil. I guess it''s a little bit on that last, piggybacking on that last question. What if the employee admits that they can''t meet the quantitative performance standards, that they actually bring a doctor''s note from their doctor and the doctor''s note says must have light duty or restricted duty. What does the ADA say about light duty, restricted duty, and how should an employer respond to a note like that from a physician?
Okay. A number of things that an employer can do to respond. Clearly, it''s a request for reasonable accommodation, a person saying due to a medical condition, I cannot do a part of my job, in this case I can''t meet certain quantitative standards. And I''m asking for something different. Light duty or restricted duty, and the fact that it''s coming in the form of a doctor''s note still qualifies as a request for a accommodation. Employers can do a number of things. One, it can follow up, both with the employee and the doctor, if it wishes, to determine if the medical condition rises to the level of being a disability as defined by the ADA. The employer does not have to do that, the employer first of all may already know that it is a disability as defined by the ADA, but even, you know, if it''s a close call, some employers just prefer to say look, we''re going to accept it is and let''s go to the other area we want to discuss, and that is what accommodation is being requested. So number 1, you could follow up on is it or is it not a disability. But number 2, is to talk about what''s being requested, the light duty or restricted duty. And first of all, the employer could respond, again, I always think it should not simply be to the doctor, I think it should also be the employee. You certainly will have the ability to go back with the employee''s permission to ask more questions of the doctor but I really think the employee should be asked pretty much all the same questions you want to ask the doctor. In some instances, it may mean you won''t even have to go back to the doctor. But even if you are going back to the doctor, I really think the employee should be a part of this. This is this interactive process is meant to be cooperative, collaborative and employees start getting worried if they don''t know what''s going on. So the more you include them, and that includes asking for their input, asking for them to clarify things, and sometimes they know more than their doctors about what they''re looking for. You may actually get more pertinent information from the employee than from the doctor. So for all those reasons, definitely talk to the employee. If you want, you also go back to the doctor. But I think that the employer''s entitled to understand why is light duty or restricted duty being requested. The problem began with not meeting quantitative standards. How is the disability affecting the employee''s ability to meet the quantitative standards? Is it something that''s temporary or is it permanent? For all I know, without asking more questions, maybe there are alternatives to light duty or restricted duty. And I don''t know based on the information you provided, the information in the doctor''s note, there''s a big difference if it''s for a few weeks or is this permanent? So I think, you know, those are the kinds of questions about really getting at what are the limitations. I mean, right now the doctor''s giving you a conclusion, please put my patient on restricted duty. I''d want to explore with the appropriate questions, what are the precise limitations, what are the problems coming from the disability from the job responsibilities that this person cannot meet? And how long are those problems expected to be there? Because if there are potentially other alternatives, remembering that the employer has to provide an effective accommodation and that doesn''t necessarily mean the one that the individual''s requesting, if there are potentially other ideas, then that may be something the employer would want to explore. Similarly, I think when I talk to people I find out they have different definitions maybe than I do for both the term restricted and light duty. Generally, it''s going to mean something that''s obviously different from what the person, person''s normal essential functions are, but for example, to say restricted duty may mean they want an exception to the quantitative standard, it may mean they want somebody to stop performing whatever essential function goes with the quantitative standard, it may go beyond it. They''re really asking you to get rid of two or three essential functions. Light duty may be something different from that. And so again, I want people to be on the same page. And we may use terms but people can mean different things. So I''d want clarification there. What are you precisely asking for? In terms of, you know, can restricted duty, depending on what it means, can it be a form of accommodation? Yes. Can light duty be a form of accommodation? Yes. The EEOC guidance, again, if you go to our website, EEOC.gov, we did a whole guidance on the overlap of ADA and workers'' compensation workers'' compensation and in that document we talk about light duty. But again, what I don''t know is are we talking permanently or is it a temporary thing? If it''s permanent, then what we''re talking about is reassignment. And with reassignment, you know, we know there are definite rules about that, you''re thought creating a position and you''re looking for something comparable, if possible, all those rules that go with reassignment. But again, I don''t know exactly what''s in the doctor''s mind. So I think the first step you''re going to go to is getting more clarification, first from the employee and then if necessary from the doctor, and then you can proceed as to what you''re talking about and what you need to explore.
Sharon?
Mhmm.
Well, what if the doctor is saying that this person needs to be excused from an essential function of their job, the doctor is saying that, and that''s the doctor''s definition of light duty, that it being excused from one of the essential functions. Does an employer have to do that?
Again, for how long? If they''re asking permanently, the answer is no. Clearly the ADA does not view a person as qualified if they need to be fully excused from performing an essential function. But if the doctor is saying for four weeks that this person, say, is recovering from something, and they really can''t for four weeks perform the essential function, then I think in that instance employers may want to try to accommodate that. You don''t generally, we don''t generally talk about it, because it''s not sort of something the ADA itself specifically addresses, but I think kind of common sense, if it''s a pretty short term temporary situation and the employer can do it, and, you know, for most employees especially if we''re thinking about you''re going to fire the person in response or reassign them to a different job entirely and it''s only a four-week thing that they need, you''re not going to probably have someone come in and fill the position that quickly. So if it''s pretty short-term, I think employers are going to do it. So I think you really need clarification here. But also, even here, the number of times I''ve had doctors say I want someone to stop performing an essential function, it turns out that there is an accommodation that will enable the person to perform the essential function that the doctor doesn''t know about. And the doctor isn''t thinking in those terms that will meet the doctor''s needs, it protects the individual, it''s not going to harm them. So it''s, again, why I say without understanding what''s behind the doctor''s conclusion, that I need my patient to stop performing an essential function, I still think that''s somewhat tying the hands of the employer and preventing perhaps a fuller discussion of what alternatives may be available.
Very good. Thank you.
All right. Thanks for the question. May we have the next question, please?
Our next question is from the Illinois Human Services.
Hi, I was checking on the intersect of what you explained on the employer''s right of fitness for duty. Is there any connection in terms of an employee''s conduct or performance to an employer asking for a fitness for duty?
There can be a connection. Remembering, and again, you go to the EEOC Website, we''ve got a document from 2000, a guidance on doing medical exams, ordering medical exams or asking disability-related questions of employees. But what the ADA requires of an employer is if you''re going to do a fitness for duty exam, a medical exam of an employee, you have to show as an employer you have a reasonable belief based on objective information that due to a medical condition a person might be having trouble in terms of performing essential functions, and I think that that can be extended to or might be having conduct problems, or the person might be posing a direct threat. And so the whole reason to do the fitness for duty is you want to find out for sure, is there a medical reason for either conduct, performance problems or direct threat? But go back to the beginning of that requirement, you have to have a reasonable belief, based on objective information, that a medical condition might be the cause of the problem. And I think in a lot of instances where there are performance or conduct problems, employers don''t know that. Certainly where the person is not bringing up the disability, but even if there is a disability, is there really a reasonable connection to be made here that there may be an underlying medical problem? For example, someone who''s asleep at her desk and you go by a lot and you see her asleep at the desk and you warn her and counsel her about being asleep, and she says oh, I''ll take care of it, it won''t happen again, and it does happen again. So the employer thinks well, I want to send this person for a fitness for duty exam because there could be a medical problem. Well, there might be. But is it really reasonable to make that connection because there could be other equally valid reasons this person''s going to sleep. It could be that they''re up all night partying. It could be that they''ve got family problems. It could be that they''re working a second job. And not getting enough sleep. And so if all you have is a person who''s sleeping on the job, I''m not sure you''ve got enough to order a fitness for duty exam. So I think that the employers need to really become familiar with that guidance that EEOC put out and really ask themselves, how am I making this link? What is it that I think is really saying that it''s likely there is a medical reason behind this that it could be helpful at this point to order obviously a specific kind of medical exam to address the issues that are being raised. If you can meet that standard, then you may go ahead and order the fitness for duty exam. But something to keep in mind is, number 1, if there are any performance or conduct problems, an employer''s not required to order a fitness for duty exam. The ADA lays out the rules on when an employer is permitted to order a medical exam or to ask disability-related questions. But that''s sort of the statute giving permission to employers, it''s not ordering employers to do that. So employers have an option of going ahead and simply dealing with a conduct or performance problem as just that, a conduct or performance issue, and to handle it strictly on that basis. They''re not obligated in addition or in the alternative to also order a fitness for duty exam. If the employer meets the ADA standard and does have in effect the statute''s permission to order a medical exam, it may do so. But in addition, it may also go ahead and impose whatever the consequences are for the conduct or performance. I think when employers choose to do fitness for duty exams, and I''m assuming that they meet the ADA standard to do it, I think employers need to still make clear to the employee what the problem is, what the employer''s expectations are of meeting the performance or the conduct standard. Sometimes these things can get blurred if employers don''t make clear that all right we''re going to send you for a fitness for duty exam, we think it''s going to be helpful, but it''s serving the objective or the goal that here''s our performance standard, you''ve not been meeting it, you must meet it, you know, you''re still open to talking about accommodation if that''s necessary, but the bottom line is, here''s the performance standard that must be met ultimately, and same thing if it''s a conduct issue, here''s the conduct standard that must be met. You really don''t want to lose sight of sort of why are you doing a fitness for duty exam in the first place, what''s the ultimate objective. And I think for employers, the ultimate objective is always going to be to make sure they have an employee who can meet those performance standards and those conduct standards.
All right. Another, thanks for your question, another question submitted online. In this one asks, should employers require supervisors to be trained on how to identify and assist employees in requesting accommodations?
In terms of training supervisors, I certainly think that at a minimum, supervisors need to know what constitutes a request for accommodation. Because all too often supervisors still don''t get it. And in part, because they''ve never been trained, in this, and as probably most people listening in know, it doesn''t take much to qualify as a request for accommodation, all a person has to say is I have a medical condition and I need you, my supervisor, you my employer, to do something for me. They never have to mention the term "reasonable accommodation" or ADA or Rehabilitation Act. So with that being almost the kind of layperson kind of request, I absolutely think at a minimum, all supervisors need to recognize that. What should happen next in terms of training for supervisors? I think that employers can decide what they think would work best for their particular workplace. Some employers want their supervisors to be quite active, quite involved, so, therefore, I think there must be more training of supervisors if you really want them to engage in the interactive process. You''ve got to really go through the nitty-gritty of what that means and what''s required. Other employers would like somebody else, in essence, to take over or to at a minimum assist the supervisor in certain places, they actually have disability coordinators or reasonable accommodation coordinators. That''s true of a lot of state and federal governments. For private employers it may be human resources or personnel. But then, I think the training, and in those instances, supervisors need to know who to call. And in a way, it becomes a performance standard for your supervisor. They can''t drop the ball here. If they get a request for accommodation, they''ve been trained, you''ve got to recognize what it is, and then what they''re supposed to do is immediately send that e-mail or pick up the phone and here''s the person they''re supposed to contact. And if the supervisor doesn''t, then the supervisor has dropped the ball and has done a disservice to the employer as well as to the employee. So I can''t really give, you know, one answer to that question, because I don''t think there''s a right or wrong way. I think there''s some personal choice. But just whatever the employer wants to do, then that really dictates what kind of training supervisors need. But at a minimum, as I say, all those supervisors need to understand how to recognize a request, including those coming through doctors'' notes or third parties, because that''s often they''re not aware, they think it''s just something coming from the employee and so they completely miss, like earlier in this call, the doctor''s note asking for light duty or your workers'' comp. people, your risk managers, they''re working with a workers'' comp. issue and they don''t realize it just became a request for accommodation under the ADA as well. So all those different parts of an employer, all those people need at least some minimum training here.
Excellent. Another question, please?
Our next question is from the Disability Resource Center.
Go ahead with your question. No one there.
Okay, we''ll move on. The line of Jim from the ORSC.
We had a question, if you have a person who comes to you and says that they need a reasonable accommodation, you go through the process and grant the reasonable accommodation, after the accommodation has been granted and you''ve moved on and things are well, you find out that the person violated a policy or there''s a performance issue that happened prior to the request for the accommodation, the granting of the accommodation, how do you handle that situation without getting into a case that could be construed as retaliation? Can you address that performance issue? And then the other question was, on medical information, the employer and the employee...
I''m sorry, let''s let Sharon answer the first one.
Okay.
I have short-term memory problems. In terms of you providing accommodation and then later on you find out there''s performance or conduct problems, I appreciate you don''t want it to look like retaliation. Obviously, you don''t want it to be retaliation. But that doesn''t mean that the employer should not address immediately the performance or conduct problem. And I think you need to be very clear about what they are. In terms of the question raised, it implies that they''re kind of totally separate, I mean, somebody requested accommodation, they were given it, and then sort of on an unrelated matter there''s now performance or conduct problems. I mean, if it''s unrelated, you''re not touching their accommodation, you don''t withdraw their accommodation or threaten to revoke it as a kind of a punishment for the performance or conduct problems, that certainly would be retaliation. So you just sort of leave it alone. Obviously, all employers should be documenting carefully these kinds of interactions with employees so you want to be real clear about, you know, how we learned about the performance or conduct problems, and the steps you took. And as I said, if it''s truly, you know, unrelated to anything about the accommodation, then it''s not like you''re going to put in there anything about the accommodation. It''s a totally separate issue. If somehow, and I''ve seen this happen, that it''s seemingly connected with, say, the performance problem, sometimes people have been given accommodations to improve performance, but performance doesn''t improve, as expected. I think employers need to be in there as soon as they see that. I''m a great believer that when you''re given accommodation, at least for a period of time, the employer and the employee should be checking in on how''s it going so the employee should be saying, you know, if it''s going well, or hey, I think maybe there are some problems and we still need to talk about it. But if the employee''s not doing that, the employer should to really make sure everything''s working. But if it''s not working, and performance problems continue, it''s not so much a question of we''re just going to take away the accommodation, there may be a need to, in effect, reopen the interactive process. Is there anything else that might be done? Is there a reason that this accommodation is not working as expected? Does something need to be refined here? Is it that this accommodation, despite everyone''s good faith efforts, just really turned out to be the wrong accommodation? Is there something else that could be done? So if there is some kind of connection between a continuing performance problem and the accommodation that was provided, it''s thought about again making it seem like retaliation or punishment, we''re taking it away, but rather the responsible thing is saying, hey, we notice it''s not working, an accommodation that''s not working means we need to talk about it and see if there''s something that would work or, as I say, maybe it''s about refining the accommodation that was provided. And carrying out your interactive process again.
I think the question was a little bit different, you have the accommodation, somebody''s having a problem scheduling, managing their work, you provide an accommodation, from that point forward it''s going fine but you find out six months ago, two months ago that they failed to do something prior to getting the accommodation, can you go back and address that prior act after you''ve already discussed and granted an accommodation and that accommodation is effective?
Again, remembering that accommodation is about going forward, if it did not come to light earlier that there was a serious performance problem, so in effect, the accommodation should prevent a recurrence, but now this was just not something that the employer could have found out about, I''m going to assume, it''s not something the employer put aside but truly I could imagine a situation where just couldn''t have come to light any already, I think the employer could still go back and say, look, it just came to light, this has caused serious problems, again, we hope the accommodation is fixing it, but depending on what the problem is, you know, as to what you''re going to do at this point. I certainly think you can hold them accountable. Again, you want to document very carefully that when you found out that it wasn''t something you overlooked, and again, I''m assuming if it is about taking some action, it''s pretty serious. If it''s more minor and now the accommodation is working, it may be somewhat frustrating but is it worth it to go ahead and impose some punishment here. I think the employer can do it, you know, as I said, it''s not retaliation, it is something in the past, but obviously by you''re asking it, I would want to proceed very clearly, documenting it well, about, you know, and using discretion and judgment as an employer about is it worth it to go ahead and impose some punishment, maybe even not the same one we might have imposed had we learned this six months ago. On the other hand, if it''s a pretty serious problem then it may be the appropriate thing to go ahead. But again, you''re keeping with the accommodation and you''re saying it''s about the past, it''s not about what we''re doing going forward, if everything''s working now with the accommodation, then you''re expecting the person''s going to perform just fine and they will be evaluated accordingly.
Okay. We have gone past the, thank you for your questions, we''ve gone past the bottom of the hour, always with Sharon, she brings a great deal of information and knowledge and we truly appreciate her time. If you were unable to get your question in to Sharon or if the presentation today has spurned some new questions that you might have, please contact your regional DBTAC ADA center by calling 800-9490-4232 they can assist you with that question and can consult with Sharon on the question if necessary. Just a quick reminder, before we finish, I want to let folks know that our next month''s audio session will take place on July the 17th, it is one of annually our most popular sessions, it is the "ADA Update: 17 years later" where we will get updates from the U.S. Department of Justice as John Wodatch will be joining us on that day. And unfortunately, Sharon is not able to be with us as she usually is in July, but we will have Jeanne Goldberg from the EEOC to give us an update on the EEOC''s activities with regards to enforcing the ADA and generally we have announcements about new technical assistance documents from both the Department of Justice and the EEOC. So once again, I want to thank Sharon for her time today. If you want additional information on the audio conference series on how to register or the remaining sessions in the 2006 and ''07 season visit www.ADA-audio.org, in approximately 10 to 14 business days, the audio archive as well as the text transcript of today''s session will be made available on the www.ADA-audio.org Website. So thank you very much for joining us and have a wonderful afternoon.
Ladies and gentlemen, that does conclude your conference call for today, we''d like to thank you for your participation and we ask that you please disconnect your lines at this time.