More people now disabled under ADA, but employers still allowed to enforce performance and conduct standards 10-08-2008
- By Rita Risser, attorney at law

Last month, with no fanfare, President Bush signed a new law that significantly expands the rights of people with disabilities. But even under the new law's provisions, the Equal Employment Opportunity Commission says that disabled employees still must meet their employer's performance and conduct standards.

In recent years, the ADA - the world's first human rights law for people with disabilities - has been dramatically narrowed in the courts, leaving employees with epilepsy, diabetes, mental illness, cancer, and other disabilities unprotected from discrimination. The Supreme Court has generally exempted from the law's protection those with partial physical disabilities or impairments that can be treated with medication or devices such as hearing aids. Thus, someone who takes medication to control epilepsy or diabetes was no longer considered disabled.

The ADA Amendments Act of 2008 clarifies the intent of Congress and reverses the "judicial activism" that has resulted in more than 95% of employment-related ADA cases being dismissed on summary judgment. The bill directs the courts toward a more generous application of the ADA's definition of disability, making it clear that Congress intended the ADA's coverage to be broad and to cover anyone facing discrimination because of a disability.

Chief sponsors of the bill include Rep. James Sensenbrenner (R-Wis.) and Senator Tom Harkin (D-Iowa). The bill was praised by the AARP and disability rights activists, as well as by the U.S. Chamber of Commerce.

Just a few weeks earlier, the EEOC had issued official guidance on applying performance and conduct standards to employees with disabilities. Employers will find that this guidance clarifies a lot of ADA issues in a way that is straight-forward and makes business sense. Here is a sample of some of the questions and answers from the EEOC.

Q: If an employer gives a lower performance rating to an employee and the employee responds by revealing she has a disability that is causing the performance problem, may the employer still give the lower rating? A: Yes.

Reasonable accommodation does not require that the employer tolerate poor performance or withhold disciplinary action, including termination. The employer does not have to cancel a PIP (performance improvement plan) because reasonable accommodation never requires excusing poor performance or its consequences.

Q: If an employee's disability causes violation of a conduct rule, may the employer discipline the individual? A: Yes, if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard.

Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this standard, such as prohibitions on violence, threats of violence, stealing, destruction of property, and insubordination. Employers may require that employees show respect for, and deal appropriately with, coworkers, clients and customers.

Q: What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct? A: The employer may still discipline the employee for the misconduct.

Q: Should an employer mention an employee's disability during a discussion about a performance or conduct problem if the employee does not do so? A: Generally, no.

Q: 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? A: Yes, but the employer is not required to ask - the duty to request is on the employee.

Q: May an employer require an employee who is having performance or conduct problems to provide medical information or undergo a medical examination? A: Sometimes. The ADA permits but does not require an employer to seek medical information. An employer may choose to focus solely on the performance or conduct problems and take appropriate steps to address them.

What you should do: Assume anyone with a disability, even if it is fully treatable with medication, is "disabled" under the ADA, and work with the employee on any requests for reasonable accommodation. Treat all employees consistently and fairly, and you will avoid most claims for disability discrimination. For the complete set of the EEOC questions and answers, click here. For a summary of the changes made by the ADA Amendments Act of 2008, go here.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.