The ADA: Performance & Conduct Sharon Rennert Senior Attorney Advisor, ADA Div. June 10, 2008 How Does ADA Apply to Performance/Conduct Issues • An employee’s disability typically has no bearing on performance or conduct problems • Performance/conduct issues generally should be addressed in the same manner as done with employees without disabilities • Role of reasonable accommodation in addressing disability-related performance or conduct problems is to assist employee to meet performance goals and avoid conduct problems, not to excuse or tolerate problem What We Will Cover • Performance Standards • Conduct Standards • Seeking Medical Information • Attendance Issues • Alcoholism and Illegal Use of Drugs Performance Standards • Employers establish job-related requirements .These include specific tasks or assignments (essential and marginal functions) .Production Standards • Employers establish methods to evaluate job performance Production Standards • Employee with a disability must meet the same production standards as other employees in the same position • Production standards refer to both • Quantitative Standards • Qualitative Standards • Reasonable accommodation never requires lowering a production standard but may require accommodation to meet the standard Practical Guidance .Supervisors should always give clear guidance to all employees, including those with a disability, regarding the quantity and quality of work that must be produced and the timetables for producing it Providing accurate feedback and evaluations • Supervisors should evaluate the job performance of an employee with a disability in the same manner that it would evaluate any other employee’s performance • Failing to provide an accurate evaluation leaves the employee at a disadvantage to improve performance and, if necessary, request reasonable accommodation Employee discloses disability in response to a lower performance rating (or supervisor raising performance problem) response to a lower performance rating (or supervisor raising performance problem) • Don’t fixate on the disability! • Make clear that the employee earned the lowerperformance rating, regardless of whether thedisability played a role • Important that supervisor reiterate whatemployee must do to improve • In response to employee raising disability, employer can ask why the employee believesthat disability plays a role in performanceproblem and whether employee is asking forreasonable accommodation Employee asks for reasonable accommodation in response to a lower performance rating/performance problem • Proceed with discussion of evaluation/performance problem • But also begin “interactive process” in response to request for accommodation • Cannot refuse to consider or to provide reasonable accommodation because there is a performance problem Conduct Standards • Employer may discipline employee with disability for violating a conduct standard if the disability does not cause the misconduct (disability completely irrelevant) • Holding employee to same standard as all other employees • Disability rarely is relevant When Disability Causes/Contributes to Misconduct • An employer may discipline an employee with disability if the conduct standard at issue is job-related and consistent with business necessity AND if other employees are held to the same standard Conduct Rules that are job-related-related/ consistent w/ business necessity • Prohibiting violence/threats of violence • Prohibiting stealing/destroying property • Prohibiting insubordination • Requiring respect for clients, customers, and the public • Prohibiting inappropriate behavior between coworkers • Prohibiting alcohol/illegal drug use Ambiguous Conduct Rules Prohibiting “disruptive” behavior: What do you consider disruptive? Factors to consider: • Specific conduct at issue • Symptom of disability affecting conduct • Nature of job/work environment Disclosure of Disability/Request for Reasonable Accommodation Timing of Request is Critical • After misconduct that warrants termination: May proceed with termination • After misconduct that warrants other discipline: May impose discipline but ask why disability being raised/begin interactive process Performance or Conduct Problem • Focus on what employee is doing wrong (be specific), what employer expects employee to do to improve, and consequences if no improvement • Don’t focus on disability (except if reasonable accommodation is requested) because that could lead to “regarded as” claim under the ADA Amendments Act Seeking Medical Information • Employer cannot seek medical info or require medical examination solely because employee’s behavior is annoying, inefficient or otherwise unacceptable • Greater the number of reasons to explain conduct, less likely ADA would permit medical inquiries/examination Seeking Medical Information • Even if ADA permits medical inquiries/examination, what would medical information provide? • Why does employer think this info is necessary? • If discipline is warranted, why would having medical information change disciplinary action? Attendance Issues • While reasonable accommodation may require extending leave or modifying schedule, does not require complete exemption from time/attendance requirements • Chronic, frequent AND unpredictable tardiness or absences don’t have to be tolerated Attendance/Leave Issues and Reasonable Accommodation • Violations of attendance/leave policies BEFORE request for accommodation subject to employer’s usual disciplinary action for infraction • If employee entitled to reasonable accommodation to address attendance/leave problem, employer should provide accommodation to eliminate problem Indefinite vs. Extended Medical Leave • Employers may have to grant extended leave as a reasonable accommodation, absent undue hardship • Don’t have to grant indefinite leave • Know the difference! • No known or anticipated return date vs. approximate date of return • Extended leave can become indefinite leave Alcoholism/Illegal Drug Use • ADA may protect a “qualified” alcoholic • ADA does not protect employee currently engaging in illegal use of drugs • ADA may protect a recovered drug addict who no longer engages in illegal drug use and who is “qualified” Alcoholics and Drug Users: Applying Perform./Conduct Rules Performance: Apply same standard as applied to other employees Conduct: Applying Perform./Conduct Rules Performance: Apply same standard as applied to other employees Conduct: • If alcoholic/drug addict: Same standard applied to other employees • If any other disability: Same standard applied to other employees as long as it is job-related and consistent with business necessity Sharon Rennert Rennert • 202-663-4676 • Sharon.rennert@eeoc.gov The ADA: Applying Performance and Conduct Standards to Employees with Disabilities www.eeoc.gov/facts/performance conduct.html