By Barbara Haga, September 18, 2019

Once again, we are looking at handling performance issues in the case of an employee with a disability based on information provided in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.

Section III.c of the guidance document covers the matters addressed in this column. It is a section about conduct matters, but the examples include performance, too. Sections quoted from the EEOC document are in italics.

10) 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?

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.  

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct.

We are going to look at the examples in reverse order since they line up with the two options discussed above that way.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. 

The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

This example is important for several reasons. Although it arose in a performance context (the counseling meeting), it is actually a misconduct issue in the Federal context since the action results from the employee yelling and cursing at her supervisor. It reiterates the point that employees with disabilities are expected to meet the same conduct standards as any other employee and allowing such an employee to violate an accepted standard because of a disability is not a reasonable accommodation.

Another reason this example is helpful is it serves as a reminder that managers can require employees to stay put in meetings. My sense from training lots of supervisors is that many of them might not have responded as this supervisor did when the employee tried to leave. I think some might have felt that they could normally require an employee to stay but might have paused this time because this employee had disclosed that there was a disability. As the EEOC described the scenario, the supervisor properly told the employee she had to stay for the discussion of her work.  This is one of the things that you might consider mentioning to a supervisor when you help them with actions and prepare them to deliver the notices. They need to be ready to say, “you have to stay,” when discussing performance matters since sometimes employees, with disabilities and without, will refuse to listen or attempt to walk out when confronted with information about performance deficiencies.

Example 19: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging towards a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track.

The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months all of the reasonable accommodations Tom has requested because they would assist him to continue performing his job without causing an undue hardship.

Tom’s example is a good news story. The disability was disclosed close after the performance deficiencies began, the medical provided the next day, the fix with new medication would only take six to eight weeks, and in the meantime there was a reasonable solution to help Tom successfully perform in the interim. If all goes as planned, management should be able to retain what appears to be a good employee with a successful performance record.

In this case, it appears that the supervisor agreed to the requested accommodation without any discussion about consequences tied to the outburst. If we could roll the clock back: What would have been the answer if the supervisor had wanted to discipline Tom for the outburst? From a discrimination point of view, there is nothing that would prevent the supervisor from doing so since the disability was not disclosed until after the outburst occurred. From a disciplinary standpoint, there is a choice to be made. If the supervisor is satisfied that Tom’s outburst is not likely to recur, then a memo to the record about what happened and noting that Tom was told that this inappropriate behavior wouldn’t be tolerated in the future, might be appropriate. But, if the supervisor wanted to take an action such as a reprimand or short suspension and felt it was warranted given that others who engaged in similar outbursts were similarly disciplined, then it is not out of the realm of reasonableness for that to be the outcome

On the performance side, the supervisor should certainly document what the issues were regarding deadlines and projects. A memo to Tom citing what the problems were and what the supervisor would do in the next weeks to assist Tom in bringing his performance back to an acceptable level would be appropriate. In this example, Tom’s health care provider recommended that the supervisor do the very types of things that might have been suggested as part of a counseling process for Tom.  I would imagine that most of us would stop short of a PIP given that there is an expectation that Tom will return to successful performance in a short period of time. Haga@FELTG.com.

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