By Christina Gomez
How should you respond when an employee reveals in a performance review meeting that he has a medical condition that may be affecting his poor work performance? What if an employee being disciplined or terminated indicates that her misconduct may be caused by a disability? The Equal Employment Opportunity Commission (EEOC) recently addressed these and other related questions in a new guidance on the Americans with Disabilities Act (ADA).
The EEOC’s New Guidance
The EEOC’s new guidance on applying performance and conduct standards to disabled employees do not impact the ADA’s existing non-discrimination and accommodation provisions. Rather, the guidance provides a Q&A covering thirty issues that may arise with disabled workers in conducting performance reviews, enforcing conduct standards, and addressing related problems such as attendance issues, dress codes, and drug and alcohol use. The Q&A also covers issues relating to obtaining medical information and maintaining confidentiality when an employee requests an accommodation.
Under each of these topics, the EEOC guidance offers general questions and answers followed by real-life examples applying to that issue. Some of the new guidance includes:
Performance Requirements
· A disabled employee must meet the same quantitative and qualitative production standards as a non-disabled employee. While an employer may need to provide a reasonable accommodation to assist a disabled employee in meeting these standards, it need not lower or change the standards as a form of accommodation.
· If an employee responds to a low performance rating or disciplinary action by revealing that he or she has a disability that is causing the performance problem, the employer does not have to rescind the low rating or disciplinary action. However, if the employee requests an accommodation to assist with future performance, the employer should engage in the interactive process with regard to that request, and may need to delay re-evaluation of the employee’s performance to give him or her time to improve with the accommodation.
Conduct Standards
· An employer may enforce conduct rules, even if a disability affects an employee’s misconduct, so long as the rules are job-related, consistent with business necessity, and consistently applied to all employees. Conduct rules that will typically meet this standard include prohibitions on violence, stealing, destruction of property, insubordination, inappropriate behavior toward co-workers or clients, misuse of the Internet or emails, and violation of safety rules.
· If an employee responds to counseling or discipline by revealing that he or she has a disability that is causing the misconduct, the employer does not have to rescind the discipline—even if that discipline is termination—but may need to provide an accommodation moving forward.
Other issues
· An employer generally should not mention an employee’s disability during a discussion about performance or conduct issues unless the employee brings it up. Instead, the employer should focus on the employee’s performance problems or misconduct and on its expectations of improvement.
· Employers may have to modify their time and attendance requirements as a reasonable accommodation to disabled employees—such as allowing modified work schedules, intermittent leave, or extended leaves of absence. However, employers generally do not have to grant open-ended schedules, accept irregular and unreliable attendance, or allow indefinite leaves of absence as accommodations.
· Employers may have to provide reasonable accommodations to enable disabled employees to comply with a dress code, such as allowing employees to wear specialized uniforms or more comfortable shoes. But employers may require full compliance with dress codes that are job-related and consistent with business necessity, or are required by federal law (such as federal safety laws).
· Alcoholism may qualify as a disability, as may recovery from drug addiction, but current illegal drug use will not. Nonetheless, employers may require alcoholics and recovering drug addicts to comply with performance and behavior standards, including requirements not to use or be under the influence of alcohol or illegal drugs in the workplace.
Helpful resource
While the EEOC’s guidelines do not have the force of law, they are based largely on actual cases and provide a useful resource for addressing the many tricky issues that may arise when a disability affects an employee’s performance or conduct in the workplace.
