By Barbara Haga, August 14, 2019

The topic of accommodation sometimes arises when an employee is having difficulties meeting the performance requirements of the position, and could also occur when the level of performance has dropped even though it is still acceptable performance. This month, I continue the discussion of these issues as addressed in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities. 

Section III.a of the guidance document covers the matters addressed in this column.  Sections quoted from the EEOC document are in italics.

Performance at Fully Successful or better.  Question 4 deals with situations where the employee only raises the issue of disability after performance had fallen to a level lower than what had been met previously had been reached. In the Federal workplace, this could be an employee who received a Level 4 Exceeds Fully Successful last cycle, but a Fully Successful this cycle.

4) 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? Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played.  

Example 4: Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.

In this example, if Nicole filed a grievance over the rating, the fact that she had difficulty maintaining the level of performance previously assigned because of a physical or mental condition should not affect the outcome. Assuming that the supervisor completed the rating properly and could substantiate the ratings assigned, the performance in this case was judged against the written standard and assessed as meeting those requirements but not exceeding them, so the deciding official should sustain the rating.

If Nicole gave the disability as a reason for the lower performance accomplishment, there should then be a conversation with Nicole about future performance. In the Practical Guidance following Q.4, the EEOC writes: If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.

 Performance at Unacceptable. What if the performance is at a level which would warrant some corrective action has already occurred and the issue of disability arises?  Questions 5 and 6 deal with these scenarios. The basic premise is as follows:

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer:

– tolerate or excuse the poor performance;

– withhold disciplinary action (including termination) warranted by the poor performance;

– raise a performance rating; or

– give an evaluation that does not reflect the employee’s actual performance

If the employee requests accommodation because a disability is interfering with the ability to maintain acceptable performance, two different scenarios could present themselves, whether the request occurred after the opportunity to demonstrate acceptable performance (ODAP) was concluded or was raised prior or during the ODAP.

Post ODAP.  The guidance document provides a private sector example of what would happen when the disability was not raised until after the warnings and corrective procedures had taken place.

Example 9: An employee with a small advertising firm has a learning disability. Because the employee had a bad experience at a prior job when he requested accommodation, he decides not to disclose his disability or ask for any accommodations during the application process or once he begins working. Performance problems soon arise, and the employee’s supervisor brings them to the employee’s attention. He tries to solve the problems on his own, but cannot. The firm follows its policy on counseling and disciplining employees who are failing to meet minimum requirements, but these efforts are unsuccessful. When the supervisor meets with the employee to terminate his employment, the employee asks for a reasonable accommodation.

The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them. This employee waited too long to request reasonable accommodation.

For a Federal employee, this could play out in two ways. One, in a conversation at the conclusion of the PIP advising the employee that he/she was not successful in reaching an acceptable level of performance, the employee raises the disability. The issue of a disability could also be raised in conjunction with a reply to a subsequent proposed adverse action based on the failed ODAP. In neither case would the agency be required to forgive the unacceptable performance as an accommodation.

We’ll continue to explore these performance-related issues next time! Haga@FELTG.com.

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