Module 4: Troubleshooting Performance & Safety Issues

Many employers and employees are confused about what steps are appropriate where a disability is causing – or seems to be causing – a performance, conduct or safety problem; when a request for accommodation should be made; and when an employer can properly raise the issue of an employee’s disability when discussing performance, conduct or safety problems. In this module we will address each of these issues.

Job Performance Standards

Some employers and some employees seem to think that an employee with a disability can’t be held to the same job performance standard as employees without disabilities. But that is not true. Employers may apply the same job performance standards to employees with disabilities and employees without disabilities. Lowering a performance standard because an employee cannot meet it due to a disability is not required as a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a performance standard. In fact that’s one of the main purposes of reasonable accommodation – to make sure an employee with a disability can perform job functions to the standard set by the employer.

Job Performance Discussion

If an employee with a disability states that the disability is the cause of the problem, the employer can ask why the disability is affecting performance standards. The employer may ask whether there is an accommodation that might raise the employee’s performance. Employers find the “interactive process” helpful in clarifying what accommodation would help to correct a performance problem.

For example: An employee with a learning disability that she hasn’t disclosed has performance problems. Her supervisor notices the problems and meets with her. At this point the employee discloses her disability and asks for a reasonable accommodation. The supervisor denies the request, saying, “You should not have waited until problems developed to tell me about your disability.” The employee’s delay in requesting an accommodation does not justify the employer’s refusal to provide one. The supervisor does not have to rescind any discipline but the supervisor does need to discuss whether there’s a reasonable accommodation that will improve the employee’s performance, without posing an undue hardship on the employer.

Job Performance and Medical Documentation

Sometimes medical information from a professional will help determine what’s going on.

Employers may seek medical documentation to learn:

• If the condition meets the ADA’s definition of disability.
• Whether and to what extent the disability is affecting job performance.
• What accommodations may address the problem.

Job Conduct Standards

The ADA gives employers latitude to develop and to enforce conduct standards. A conduct standard must be “job-related and consistent with business necessity” when it is applied to an employee whose disability caused the violation of the rule.

Job Conduct Standards Employers May Require

Certain conduct standards will always be “job-related and consistent with business necessity” such as requiring that employees observe safety rules and deal appropriately with clients and customers. Here are some more examples.

• Prohibiting:
  • violence, threats of violence, stealing, or property destruction
  • insubordination towards supervisors
  • inappropriate behavior between coworkers (yelling, cursing, shoving, obscene gestures)
  • offensive e-mails
  • access to inappropriate websites
  • consumption of alcohol or illegal use of drugs in the workplace

Job Conduct Standards and Discipline

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

Job Conduct Standards and Reasonable Accommodation

If the discipline is less than termination, the employer may ask about the disability’s relevance to the misconduct. The employer may ask if the employee thinks there is an accommodation that could help avoid future misconduct. If an accommodation is requested, the employer should begin an “interactive process” to determine what accommodation would be effective.

For example: A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations discussing equipment installation. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers and uses derogatory nicknames for coworkers. Her supervisor first warns the employee orally to stop her unacceptable conduct, and when she persists, issues a written reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.

Job Conduct Standards – Medical Documentation

Again, sometimes medical information is helpful in resolving conduct issues.

The employer may seek medical documentation to learn:

• If the condition meets the ADA’s definition of “disability”
• Whether and to what extent the disability is affecting the employee’s conduct
• What accommodations may address the problem

Direct Threat

The ADA recognizes the need to balance the rights of people with disabilities against the legitimate interests of employers in maintaining a safe workplace; so it allows employers to exclude individuals who pose a “direct threat” to the health or safety of the individual or of others. In the past (and unfortunately sometimes in the present) employers often assumed that people with disabilities would not be safe in the work place or would cause safety problems for others. People who were blind, people with epilepsy, people with a history of psychiatric illness were often discriminated against because of these generalized misperceptions and stereotypes. As a result the ADA requires that employers make an individualized assessment to determine whether an individual poses “a direct threat.”

An employer must apply the direct threat standard to ALL job applicants and employees in the job category, not just to job applicants and employees who have disabilities.

How to determine if an individual poses a "direct threat"

An employer must assess the particular individual person.

An employer must establish through objective, medically supportable methods that there is a significant risk that substantial harm could occur in the workplace. The employer must establish that it is a current risk, not speculative or remote.

For example: A school district superintendent may believe that there is a risk of employing a person with HIV disease to teach science. However, it is medically established that HIV can only be transmitted by sexual contact or exposure to infected blood or blood products. HIV cannot be transmitted by casual contact. Employing this person would not pose a direct threat.

Consider reasonable accommodation

Even if a direct threat exists, the employer must consider whether the risk can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.

For example: A deaf bus mechanic was denied employment because the transit authority feared that he had a high probability of being injured by buses moving in and out of the garage. It was not clear that there was, in fact, a "high probability" of harm in this case, but the mechanic suggested an effective accommodation that enabled him to perform his job with little or no risk. He worked in a corner of the garage, facing outward, so that he could see moving buses. A co-worker was designated to alert him with a tap on the shoulder if any dangerous situation should arise.

Frequently Asked Questions

1. May an employer require an employee to receive or change treatment for a disability to comply with a conduct standard?

No. Decisions about medication and treatment often involve many considerations beyond the employer’s expertise. Regardless of whether employers believe they are trying to help employees who have medical conditions, employers should focus instead on addressing unacceptable workplace conduct. Employer comments about the disability and its treatment could lead to potential ADA claims (e.g., the employer “regarded” the employee as having a disability or the employer engaged in disparate treatment).

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

2. Should an employer mention an employee’s disability during a discussion about a performance or conduct problem if the employee does not do so?

Generally, it is inappropriate for the employer to focus discussion about a performance or conduct problem on an employee’s disability. The point of the employer’s comments should be a clear explanation of the employee’s performance deficiencies or misconduct and what he expects the employee to do to improve. Moreover, emphasizing the disability risks distracting from the focus on performance or conduct, and in some cases could result in a claim under the ADA that the employer “regarded” (or treated) the individual as having a disability.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

3. When discussing performance or conduct problems with an employee who has a known disability, may an employer ask if the employee needs a reasonable accommodation?

Yes. An employer may ask an employee with a known disability who is having performance or conduct problems if he needs a reasonable accommodation. Alternatively, an employer may prefer to ask if some step(s) can be taken to enable the employee to improve his performance or conduct without mentioning accommodation or the employee’s disability.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

4. May an employer require an employee who is having performance or conduct problems to provide medical information or undergo a medical examination?

Sometimes. The ADA permits an employer to request medical information or order a medical examination when it is job-related and consistent with business necessity. Generally, this means that the employer has a reasonable belief, based on objective evidence, that an employee is unable to perform an essential function or will pose a “direct threat” because of a medical condition. The scope and manner of any inquiries or medical examinations must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

5. Does the ADA require that employers exempt an employee with a disability from time and attendance requirements?

Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

6. Does an employer have to grant a reasonable accommodation to an employee with a disability who waited until after attendance problems developed to request it?

An employer may impose disciplinary action, consistent with its policies as applied to other employees, for attendance problems that occurred prior to a request for reasonable accommodation. However, if the employee’s infraction does not merit termination but some lesser disciplinary action (e.g., a warning), and the employee then requests reasonable accommodation, the employer must consider the request and determine if it can provide a reasonable accommodation without causing undue hardship.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

7. May an employer require that an employee with a disability follow the dress code imposed on all workers in the same job?

If an employee cannot meet the dress code because of a disability, the employer may still require compliance if the dress code is job-related and consistent with business necessity. An employer also may require that an employee with a disability meet dress standards required by federal law. If an individual with a disability cannot comply with a dress code that meets the “business necessity” standard or is mandated by federal law, even with a reasonable accommodation, he will not be considered “qualified.”

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

8. Does the ADA protect employees with substance abuse problems?

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,” and who is “qualified.” As explained in the following questions, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

9. May an employer require an employee who is an alcoholic or who illegally uses drugs to meet the same standards of performance and conduct applied to other employees?

Yes. The ADA specifically provides that employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees. This means that poor job performance or unsatisfactory behavior - such as absenteeism, tardiness, insubordination, or on-the-job accidents - related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.

Reference: E E O C Applying Performance And Conduct Standards To Employees With Disabilities

Check Your Learning

Answer a series of questions associated with a workplace scenario.

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources