Failure to Provide Reasonable Accommodations Creates Termination Disasters
Under the Americans with Disabilities Act (ADA), an employee who cannot perform the essential functions of their job (or pose a direct threat to safety) due to a medical condition or disability is entitled to a reasonable accommodation. A reasonable accommodation can be any change in the employee’s responsibilities, modification of the physical environment, or exceptions to workplace policies, for example. An employee who cannot perform the essential functions of the job, with or without an accommodation, does not qualify for a reasonable accommodation. However, ending the analysis there can cause serious legal trouble.
Employers should track metrics such as performance and attendance and inquire carefully as to whether there could possibly be an explanation for a recent decline. The ADA prohibits asking medical questions unless they are job-related and consistent with business necessity. If the employee reports a medical condition or disability, employers are also barred from requesting more information about the disability than what they need to determine a reasonable accommodation. But when an employer becomes aware of a disability that is interfering with the employee’s performance of essential functions, they should take immediate action.
The ADA requires that employers conduct an interactive process to discover potential reasonable accommodations. Withholding the interactive process in response to performance or conduct issues is a fatal mistake. If a reasonable accommodation may be needed, the employer must obtain information as to how the disability affects or impairs the performance of essential functions and have an open discussion with the employee about ways in which the employee could be accommodated. If the employee refuses to provide medical information or have the discussion, accommodation is not required. The employee may be disciplined or terminated for the underlying failure to perform essential functions, but this adverse action could appear retaliatory coming so quickly after a disability disclosure or accommodation request.
If the employee does participate in the interactive process, an accommodation should be implemented immediately and the employer should begin using an objective metric to evaluate the effectiveness of the accommodations.
This process should be documented thoroughly and specifically, and employers should leave nothing out. If an employee who is receiving a reasonable accommodation begins violating work rules or underperforming, documentation becomes even more critical.
Employees with disabilities can be terminated, and employers are not required to allow underperformance or policy violations (unless adjustment of metrics or policy exceptions are the accommodation itself). But discipline and termination should never jump the line before the interactive process and the implementation of a reasonable accommodation.
Withdrawal of a reasonable accommodation prior to discipline or termination is also a costly mistake. Employees, no matter the severity of their underperformance or misconduct, are legally entitled to the accommodation. Forgoing or postponing the interactive process or modifying or eliminating the accommodation during the disciplinary process can result in the employer handing over a six-figure check to an employee whose conduct was deliberately harmful or grossly negligent.
As soon as an employer becomes aware that an employee requires a reasonable accommodation to perform the essential functions of their job, the interactive process and the implementation of the accommodation should take place. Unacceptable performance and conduct should be carefully documented when they begin, not when they become so egregious as to warrant serious adverse action.
Comprehensive documentation and ADA compliance should always coexist, even-and especially-when an employee is headed down the path to discipline and termination. Violation of ADA rights could turn the tables on the employer and leave them indebted to an employee whose conduct left a trail of turmoil throughout the organization, potentially even giving rise to claims by other employees. Employers should always take the position of reasonable accommodations first, and adverse action may follow when there is significant documentation to prove that the adverse action was not discriminatory on the basis of disability or retaliation in response to the accommodation request. Failing to comply with the ADA is dangerous and expensive under any circumstances.