News + Events
Statutory Spotlight: EEOC Guidance on Applying Performance and Conduct Standards Under the ADA
February 9, 2009
Ashley Z. Hager
If an employer terminates an employee for poor performance or misconduct and the employee then reveals that he has a disability, does the employer have to reinstate him? If an employer suspects that an employee’s performance or conduct problems are the result of a disability, should the employer mention it? These questions and more are answered in the recently issued EEOC’s guidance for applying performance and conduct standards to employees with disabilities. The guidance first lays out the Americans with Disabilities Act’s (ADA) basic legal requirements, and then takes employers through 30 questions and answers on relevant subjects, such as performance, conduct, attendance issues, dress codes, drug and alcohol use, and confidentiality. Because employers often face questions about how to apply their work rules and standards to employees who are disabled, this guidance is a must-read.
Employers may have missed this significant guidance because it was overshadowed by the buzz surrounding the new Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Moreover, because the guidance was issued on September 3rd (prior to the passage of the ADAAA on September 28th), there was some concern that the ADAAA would render the guidance obsolete. Recently, however, the EEOC made minor revisions to the guidance to reflect the changes set forth by the ADAAA. The guidance remains virtually the same, with changes made only to reflect the ADAAA’s broadened definition of a "disability" and explain that individuals who are covered under the "regarded as" definition of disability are not entitled to a reasonable accommodation.
The information contained in the question-and-answer section of the guidance remains unchanged despite the ADAAA and addresses some of the more vexing (and oftentimes sensitive) issues employers face when applying performance and conduct standards to disabled employees, such as:
What should an employer do if an employee mentions a disability for the first time in response to a performance review or to counseling or discipline for unacceptable conduct?
• If an employee reveals her disability for the first time in response to a poor performance review or in response to counseling or discipline for unacceptable conduct, the employer need not change the performance review or refrain from disciplining the employee for the misconduct.
• Even if the employer has determined that the appropriate response to the employee’s performance or conduct is termination, the ADA does not require further discussion about the employee’s disability or any requests by the employee for an after-the-fact accommodation.
• If the employer’s action is something less than termination, the employer may ask about the disability’s relevance to the employee’s performance or misconduct or ask if the employee thinks there is an accommodation that could help improve her performance or avoid future misconduct. If an accommodation is requested, the employer should initiate the "interactive process" by discussing with the employee how the disability may be affecting performance or conduct and what accommodation the employee believes may help to improve it.
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. Instead, the employer should clearly explain the employee’s performance deficiencies or misconduct and what the employer 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 (even if the employee is not actually disabled).
Must an employee with a disability ask for a reasonable accommodation at a certain time?
• An employee does not have to ask for a reasonable accommodation at a certain time. For example, an employee may ask for a reasonable accommodation before or after being told of performance problems or misconduct. Ideally, employees will request a reasonable accommodation before problems arise, or at least before they become too serious. As discussed above, the timing of a request for reasonable accommodation is important because an employer does not have to rescind a performance evaluation or discipline (including termination) even if the employee later informs the employer that his or her poor performance or misconduct was caused by a disability and asks for reprieve from discipline or termination.
Can an employer hold a disabled employee to the same performance requirements and conduct standards as an employee without a disability?
• An employer may apply the same quantitative and qualitative requirements for
performance of essential job functions to an employee with a disability that it applies to employees without disabilities (e.g., the same production standards, the same performance evaluation standards). Similarly, an employer may hold a disabled employee to the same conduct standards that it applies to all other employees if the employee’s disability does not cause the misconduct.
If an employee’s disability causes a violation of a conduct rule, may the employer discipline the individual?
• As long as the conduct rule is job-related and consistent with business necessity, an employer may discipline an employee even if the employee’s disability caused the violation of the conduct rule. Certain conduct standards that exist in all workplaces and cover all types of jobs will almost always meet this standard. Examples of such prohibitions are violence, threats of violence, stealing, and destruction of property. Employers may also prohibit insubordination towards supervisors and require that employees show respect for, and deal appropriately with, clients and customers. Whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of the occurrences, the nature of the job, the specific conduct at issue, and the working environment.
The EEOC also provides the following guidance regarding the more specific areas of attendance, dress code, alcoholism/illegal use of drugs, and confidentiality:
Attendance Issues
• Generally, an employer must modify attendance policies as a reasonable accommodation, absent undue hardship.
• There are some exceptions to this general rule. For example, the employer may be able to demonstrate that an employee who is chronically, frequently, and unpredictably absent is not able to perform one or more essential functions of the job or that any accommodation would impose an undue hardship.
Dress Code
• An employer may require an employee with a disability to observe a dress code imposed on other employees in the same job. While the employer may be able to provide a reasonable accommodation, it can require compliance if the dress code is job-related and consistent with business necessity.
Alcoholism/Illegal Use of Drugs
• An employer may require an employee who is an alcoholic or who illegally uses drugs to meet the same standards of performance and behavior as other employees. For example, poor job performance or unsatisfactory behavior related to an employee’s alcoholism or illegal drug use need not be tolerated if similar performance or conduct would not be acceptable for other employees.
• An employer may suggest that an employee who has engaged in misconduct due to alcoholism go to its Employee Assistance Program in lieu of discipline.
• If an employee mentions drug addiction in response to discipline for unacceptable performance or conduct, current illegal use of drugs is not covered under the ADA, and, thus, the employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary actions it deems appropriate.
• If an employee mentions alcoholism in response to discipline for unacceptable performance or conduct, the employee may be entitled to a reasonable accommodation, separate from any disciplinary action the employer chooses to impose and assuming the discipline for the infraction is not termination. If the employee only mentions the alcoholism and makes no request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct. If the employee requests an accommodation, the employer should begin the interactive process to determine if an accommodation is needed to correct the problem.
Confidentiality
• An employer may not tell a coworker that an employee is receiving a reasonable accommodation.
While the EEOC’s guidance does not constitute legal precedent or authority, it offers a practical reference to employers in an otherwise complex legal area. Employers should familiarize themselves with this guidance, as well as the ADAAA’s recent expansion of the rights and protections afforded under the ADA, to ensure that their policies and practices are in compliance.
The EEOC’s guidance on applying performance and conduct standards to employees with disabilities may be accessed at: http://www.eeoc.gov/facts/performance-conduct.html.