We are aware of two employees who take prescription medication, but not what they are. It has also come to our notice that their work performance is not meeting the required standards and we want to be able to figure out if the lack of performance can be attributed to any side effects from medications as well as ascertain if we need to make accommodations for any of those potential side effects. These are union employees, so with all entities considered (Union, EEO, ADA, company, customers, etc) what is the best way to approach finding out what we need to know?
Ann Kiernan replies:
I’ll address the ADA issues first, and then the union angle.
First, we have to figure out whether these employees are covered by the ADA. You do not know the nature of their medical conditions, so we cannot determine whether they have a “physical or mental impairment that substantially limits one or more major life functions”, which is the statutory definition of “disability”. But under the 2009 ADA Amendments Act and its 2011 ADA regulations, employees who are treated differently because they have a physical or mental problem are “regarded as disabled”, and entitled to certain protections.
For purposes of this analysis, let’s assume that they are regarded as disabled. The federal Equal Employment Opportunity Commission is clear that employees covered by the ADA can – and should be – held to the same performance and conduct standards as everybody else. So I would address the performance issues straight on. If the employees bring up their medications or their underlying physical or mental conditions as a reason for the poor performance, then I would launch into the ADA interactive process, to see if there is some reasonable accommodation that will enable them to meet standards. Note that under the new regs, even if the underlying condition is not a disability, if the side effects of the medication cause an impairment that substantially limits a major life function, that creates a covered disability.
Not only employers, but unions, too, have ADA obligations, but the ADA does not address the relationship between an employer’s obligation to reasonably accommodate disability and collective bargaining agreements. However, the National Labor Relations Board has made clear that the issue of reasonable accommodation, including the impact of accommodation on rights of other employees, is a mandatory item of bargaining. In a 2005 case, an employer unilaterally accommodated an employee who presented a doctor’s note requesting a permanent day shift job. The union objected, claiming that there were other night shift employees with more seniority who would have been entitled to the day shift job. The NLRB found that the employer should have negotiated with the union and that its failure to do so was an unfair labor practice. Lechera de Puerto Rico, Inc., 344 NLRB No. 133 (2005). (There is an exception to this rule if the reasonable accommodation does not affect a material, substantial or significant change in working conditions. For instance, an employer may put a desk up on blocks or install a ramp without negotiating with the union first. )
Given the nature and complexity of the issues you have raised, I recommend a consultation with your legal counsel, and I commend you on your insights and good intentions.
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