Conduct problems may be some of the most difficult issues to address in the workplace and oftentimes have little to do with a disability. Employers are often mystified by the nature and range of conduct issues that crop up. For more information on conduct issues, how they can be handled under the ADA, and real life situations and solutions, please read on.
According to the EEOC’s guidance on The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, employers need not lower a conduct standard for an employee with a disability and can hold that employee to the same standard they hold other employees to. However, if a disability is causing the misconduct, the employer will need to consider providing accommodations to help the employee meet the standard. There is no specific timeframe in which an employee is required to ask for an accommodation under the ADA, but it would be advantageous for employees to disclose a disability and request reasonable accommodation before conduct problems arise, or at least before they become too serious. The timing of a request for reasonable accommodation is important, because an employer does not have to revoke discipline (including a termination) or an evaluation warranted by misconduct that occurs prior to an accommodation request.
Employees should not assume their employers know that an accommodation is needed just because the employer knows about the disability, nor does the employer’s awareness of the disability require the employer to ask the employee if the misbehavior is caused by the disability.
It is a good practice for employers to initiate a discussion about conduct problems before they become too serious in an effort to give employees the opportunity to address the concerns. An important point to make here is that an accurate assessment of an employee’s conduct may alert the employee that the disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve behavior, which can be beneficial to both the employee and the employer.
See the following situations and solutions that involve conduct issues and standards:
Situation: A sales associate in a retail location strikes another employee while on a break. When the store manager intervenes, he terminates the employee who hit her co-worker. The employee discloses that she has bipolar disorder and is under a lot of stress and anxiety right now due to a spouse’s job loss.
Solution: The employer does not ask anything about the disability, nor does he rescind the termination. The company policy states a zero tolerance for fighting.
Situation: An employee with a known panic disorder is confronted in a small enclosed office space by her supervisor. Even though the employee knows that leaving the discussion without permission will not be viewed favorably, she tells her supervisor that she cannot be confronted and stay in this small space. After the supervisor warns her that stepping away from the conversation will result in a termination, the employee chooses to walk away.
Solution: The employer terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her panic and need to leave were results of her anxiety disorder. She says she was trying to get away from her supervisor when she felt the panic rising, but he ordered her not to leave the room. The employee apologized to her supervisor and asked to be reinstated. She also asked that in the future she be allowed to walk away from threatening situations because her stress and panic may cause her to act inappropriately. The employer leaves the termination in place because the employee’s request for reasonable accommodation came after her defiant behavior.
This example may not be as clear-cut as the supervisor thought. Since the disability was known, there might be an argument in the employee’s favor that she was asking for an accommodation when she told her supervisor that she could not be confronted and stay in that small space. It might also be said that she was not able at that time to think clearly and ask specifically for an accommodation to help, she just knew she had to get out of the situation before something more severe happened. If her supervisor did know she had an anxiety disorder, he may have been able to recognize what was happening and defuse it. The supervisor might have taken disciplinary action that was not as severe as termination, and allowed the employee the benefit of the doubt. This approach would certainly show a good faith effort to accommodate under the ADA.
Situation: A nurse with severe depression was written up after several verbal warnings for inappropriate conduct. She was placed on a thirty day plan of improvement (PIP) and warned that if the behavior did not stop within the stated time period, she would be let go. The employee decided to disclose her disability and ask for accommodations that would assist her in responding more appropriately to co-workers.
Solution: Because the employee disclosed and asked for accommodations, the employer put the PIP on hold until the employee provided medical documentation and accommodations could be made. The hospital did not have to rescind the discipline that occurred before the disability was known, but while employers can hold employees to the same conduct standards they hold others to, they are obligated to provide accommodations to help employees meet those standards. In this situation, once accommodations were put into place, the employer started the PIP.
Situation: An employee has recently begun to have workplace issues with refusing to do any work from her computer. She has suspicions that the employer has been monitoring her by placing devices in her computer. The employer assured her that is not the case, and had the IT department check out her computer as well, but the employee still refused to do any work that involved her computer. Because of the nature of these issues, the employer assumed that the employee was having psychological issues. He then required the employee to go home and prohibited her return to work until she had been cleared for duty by a psychiatrist.
Solution: By demanding a fitness-for-duty exam to be completed by a psychiatrist, the employer was assuming that the employee had a mental health impairment. A more effective alternative would have been to hold the employee to the performance and conduct standards of working from her computer and treating her refusal as a disciplinary infraction. This may have given the employee the opportunity to disclose that she was having issues, or may have given the employer the opportunity to ask this employee if there was something the employer could do to assist her in getting her work done. If the employee refused to cooperate with the employer at that point, she could be progressively disciplined according to company policy.
Situation: A 911 dispatcher began to have panic attacks on the job that caused him to leave his workstation and the phone lines to take a walk outside the building to try to calm himself down. The episodes lasted anywhere from 20-45 minutes and were increasing in frequency. What started out as a couple of episodes a month had progressed to several episodes daily.
Solution: The supervisor viewed this situation as a direct threat, and requested medical information from the employee to show that he was able to safely do his job. He included a job description for the physician to review. The supervisor also asked for strategies to keep this from happening on the job.
A direct threat means that an individual will be dangerous to himself or others. A health or safety risk can only be considered if it is “a significant risk of substantial harm.” Direct threat can be a pretty high standard to meet. The employer could have handled the situation as a performance issue – the employee was not doing his job if he was away from his workstation and not taking phone calls while having the panic attacks. If the employee disclosed at that time, then the employer could still have requested the medical information as a way to help understand how the impairment affects the employee. Accommodations that could reduce the anxiety at work that caused the panic attacks would then be considered.
- For more information, please see JAN’s “Dealing with Conduct Problems in the Workplace.”
- Melanie Whetzel, M.A., Senior Consultant, Cognitive / Neurological Team, JAN
Determining the essential job functions of a position can sometimes be very simple; however, under the Americans with Disabilities Act (ADA), this determination can also be very complex and confusing. When conflict arises between an employer and an employee it may hinge on the determination and interpretation of the essential job functions of a position. This conflict tends to be about what the essential job functions of a position are and whether an employee can perform those essential functions with or without a reasonable accommodation. Controversy in the courts remains. For example, is physical attendance in the workplace an essential function? It depends. Is overtime an essential function? It depends.
According to the rules issued by the Equal Employment Opportunity Commission to implement Title I, the employment provisions, of the ADA (29 CFR Part 1630), the following factors form the foundation for determining which job functions are essential:
- Whether the position exists to perform a particular function. For example, an individual may be hired to proofread documents. The ability to proofread the documents would then be an essential function, since this is the only reason the position exists.
- The number of other employees available to perform that job function or among whom the performance of that job function can be distributed. For example, if an employer has a relatively small number of available employees for the volume of work to be performed, it may be necessary that each employee perform a multitude of different functions.
- The degree of expertise or skill required to perform the function. For example, in certain professions and highly skilled positions the employee is hired for his or her expertise or ability to perform the particular function. In such a situation, the performance of that specialized task would be an essential function.
Although there may be additional reasons, a job function is considered essential because there is evidence to support such a determination. Evidence of whether a particular function is essential usually includes:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
Determining the essential functions of a position should be done on a case-by-case basis. In general, the essential functions of a position include all functions that are not marginal, but from a practical standpoint an employer needs to determine the fundamental duties of a position and keep these determinations up-to-date. The size and type of organization and industry, hiring practices, and current employees are all key pieces in this analysis. Remember to document your process, complete a thorough job analysis, record the important information, detail qualifications, and maintain consistency throughout the process.
For more information on developing job descriptions, see JAN’s A to Z: Job Descriptions.
Article courtesy of Beth Loy, Ph.D., Principal Consultant, Job Accommodation Network.
Congratulations on your appointment. I wish to briefly share what the overall concerns are of the thousands of private company business owners that use our program and that I have had the chance to speak to over the last 14 years. 90% of the companies we work with have between 15- 500 employees. One of the few sectors of the economy with real job growth! So, here you go:
- Allow me to grow my business. Sounds simple, and straightforward, but I can tell you the general feeling is that the government doesn’t support, but rather impedes, this growth. The fact you mention moving away from an adversarial approach is a great start! As corny as it may sound, it is time to start playing win/win.
- Allow me to hire people I can trust. This means inquiries like criminal background, financial, and medical backgrounds are relevant. For example, I can’t trust a felon in general and if I want to engage in a compassionate act and give somebody a second chance then that should be my choice, not a government requirement. This is not an act of discrimination on the part of any employer but one of legitimate concern. Who wants to hire a trouble maker or potential claim? More than anything, employers want to be able to hire on the basis of skills and character: the building blocks of trust.
- Allow my people to be productive. For example, I have worked with JAN (Job Accommodation Network) and have a great deal of respect for the work they do and for people with real disabilities trying to be productive. Unfortunately, I have seen far too many people pull out the disability/discrimination/retaliation card as soon as they realize they may be fired for non-productivity at a job they gave up on years ago. Employers are being told they can’t really understand the nature of a disability but only its limitations. Getting independent medical information is very difficult under the law. As a result of this, well intentioned employers, who are in fact concerned about a worker’s health, have learned that no good deed goes left unpunished. The lesson they often learn is not to proactively offer help because it can and will be used against them.
- Don’t drag me through a frivolous lawsuit simply to satisfy a political agenda. We don’t have the time or money for that. For example, the EEOC and NLRB in particular have “pushed too far” and I’m a former plaintiff’s attorney saying this. For example, I don’t want the NLRB to waste my tax dollars expanding NLRA precedent to protect some disgruntled loser who tweets some seriously damaging information while sitting in the parking lot on his break to another worker who should be getting their job done. This is not “concerted activity” as intended by the laws passed more than 60 years ago designed to protect workers who wanted to put in a hard day’s work for fair pay. It’s simply more social media nonsense dragged into the workplace. And…it is really the NLRB/Administration agenda to get rid of “at-will” employment? Really??
- Lastly, the ACA is a mess. Of course, employers are not in the job of being responsible for the health of others outside legitimate safety concerns. But for now it’s the law so we are stuck with it and as the Administration had to finally concede, it’s confusing as all heck, even to the regulators. I can tell you that many employers and their brokers remain confused about what to do. Pay or play calculators, FAQ’s, checklists, audits, webinars, and more can be used to support the EBSA website.
Let me conclude by saying I understand there are in fact bad people who care neither about their employees or legitimate laws designed to protect them. Most folks I know have zero sympathy for these people. Most business owners I know want to and try to do things right, do care about people, and want a mutual success. What they and I don’t want to see is an agenda that supports anything but good work.
I wish you the best in your new position; our country needs you to be successful.
Don Phin, Esq.
President of HR That Works
P.S. Perhaps you can also get the website to work so folks can really leave you comments. I tried to do so four times but it kept saying I can’t do basic math right!
In the case of ADP Direct v. Exxon Mobil Research and Engineering Company (Superior Court of New Jersey A-4806-1OT4 October 26, 2012) the Court claimed that Exxon Mobil may have violated disability law by subjecting plaintiff’s continued employment to random testing, not imposed upon other employees who are not alcoholics.
In 2007 the employee disclosed that she suffered from alcoholism and was seeking treatment. Upon return from that treatment she was required to sign an agreement to submit to random alcohol testing (commonly part of a Last Chance Agreement). She was fired in 2008 after a positive test. The court pointed out that there was no evidence of performance problems, nor was her job safety-sensitive at the time of the test.
While this is most likely going to be appealed, it sends a word of caution. This causes a trap for employers. Because the employee voluntarily disclosed her disability, and there were no performance problems, it would in fact violate the ADA to have her consent to the random testing.
Last Chance Agreements should be enforced with care. To this date I have not seen a court strike down a policy where somebody was caught intoxicated on the job due to reasonable cause but this New Jersey opinion could evidence a shifting in legal opinion.
The U.S. Equal Employment Opportunity Commission (EEOC) has been busy updating its disability related regulations and materials. All employers should review the info here.
The EEOC has also released four revised publications on protection against disability discrimination in the workplace. The publications describe how the Americans with Disabilities Act (ADA) applies to job applicants and employees with cancer, diabetes, intellectual disabilities. You can find these documents on the EEOC website under “Disability Discrimination, The Question and Answer Series.”
Many people with common mental health conditions have a right to a reasonable accommodation at work under the Americans with Disabilities Act (ADA). When requesting accommodations, employees may sometimes need supporting documentation from their mental health providers. An EEOC fact sheet briefly explains the law on reasonable accommodation and the mental health provider’s role in the process. Click here to read more.
Yesterday HR That Works Members were privileged to attend what turned out to be a 90 minute Webinar with the head of the DFEH, Phyllis Cheng. She did a great job…and every one of you should have somebody at the company that watches this Webinar and gets these obligations. Phyllis was also willing to take some tough questions from our Members and yours truly about some confusing aspects of the law. To watch this Webinar, please click here.
Note: At the end of the Webinar I spent a few minutes going over many of the tools on HR That Works designed to help meet many of these requirements.
The Department of Fair Employment and Housing recently began enforcing newly revised regulations addressing discrimination based on disability. The final regulations, which took effect on December 30, 2012, primarily update the old regulations. Among other things, the new regulations:
- include several updates to the definition of “disability” to conform to the federal Americans with Disabilities Act Amendments Act of 2008 and the broad definition contained in Government Code section 12926.1;
- provide examples of disabilities including chronic and episodic conditions, and temporary disabilities. The new regulations note a few exclusions from the term “disability,” such as the common cold, mild cuts or abrasions, and the flu;
- clarify that the term “medical condition” may include a “genetic characteristic” (in order to conform to the federal Genetic Information Non-Discrimination Act);
- add guidance regarding the phrase “essential job functions,” and specify that the elements of a discrimination claim now require the employee to establish that he or she can perform the job’s essential functions, with or without accommodation;
- provide more detail regarding the “interactive process” obligations for both employers and employees. Notably, an employee’s exhaustion of California Family Rights Act or Family and Medical Leave Act leave is now considered notice to the employer that the employee may need an accommodation; and
- recognize medical leave as a form of accommodation, but expressly state that employers need not provide “indefinite” leave.
Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)
The Fair Employment and Housing Commission has been cleaning up its regulations and laws in the area of pregnancy, disability and family and medical leave. They just released the final regs for pregnancy disability that you can get here. It’s actually a very clear document that you probably should save or take the time to read. Thankfully, no big surprises. Remember, this leave applies to any company with 5 or more employees. Updated policies are posted in the California Policies area of the Personnel Forms on HR That Works.
They are working on a final doc for disability accommodation regs…which does hold a few surprises. We’ll get that to you too once finalized.
We love the Job Accommodation Network. They are a true resource for employee and employer alike. I encourage you to check out their excellent and free video series by clicking here. Archived titles include:
- ADA Update
- Managing Emotions in the Workplace: Victims, Villains, and Heroes (by yours truly)
- Providing Reasonable Accommodations to Employees with Mental Health Impairments
- Understanding and Accommodating Mobility Impairments in the Workplace
- Profit by Investing in Workers with Disabilities
Upcoming titles include Harnessing the Accessibility Features of Mobile Devices for Use as Reasonable Accommodations, Current Events in Accommodation, Learn More About Accommodations for Executive Functioning, and more.
In the case of Jones v. Nationwide a broker was fired because he failed his Series 65 exam on numerous occasions and never asked for any kind of disability accommodation until he was about to be fired. The court said the company was in their rights to not allow additional time as an accommodation to take the exam. Because he was required to be licensed to do his job and because he never asked for an accommodation in a timely matter the employer won the case. Note he was also offered a transfer to a lesser job which he declined.