The ADA also requires that when a person with a disability asks for a modification of policies or the way the business operates, that modification must be considered. The manager tells Darren to stop talking to himself but Darren explains that he does so as a result of his psychiatric disability. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.14 Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.15 However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard. This means that when an employee with a disability seeks leave under an employers regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees (e.g., only employees who have completed a probation program can be granted advance leave). No. 1630.4 (2007). This request is not for indefinite leave because the employee provides a specific date on which she can return; the employer must provide the additional month of leave as a reasonable accommodation unless it would cause an undue hardship. 1630.1 - 1630.16 (2007); 29 U.S.C. The list of disabilities covered under the ADA refers to all the disabilities for which an employee is protected from discrimination by employers.4 min read. Given the employees job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. 1630 app. Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employers operations.76 Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctors note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctors note says that the employee will return some time between March 1 and April 1). An employer also may need to provide a reasonable accommodation to enable an employee with a disability to participate in an investigation into misconduct, whether as the subject of the investigation or a witness, to ensure the employee understands what is happening and can provide meaningful input. 22. 2001) (request for leave was not reasonable where employee took leave 29 times in a 10-month period and sought to be allowed to work when he wanted); Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 1. It covers a range of different diseases and disabilities, and in some cases can reach to include protection for those who suffer from ADHD. Is ADHD a Disability? Developmental Disabilities in the Workplace The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. Under these circumstances, the employer may insist that the employee wear steel-toed boots, and because the employee cannot comply with this rule he is not qualified.. 2 All reasonable accommodation examples used in this document assume that the employee meets the ADA definition of disability.. Example 28: A deaf employee at a federal agency is involved in an altercation with a coworker. Does the ADA protect employees with substance abuse problems? The doctor explains that there have been complications and that the employee is not responding to treatment as expected. 2007) (unpublished) (employer had no duty to provide reasonable accommodation to employee who had angry outbursts due to Alzheimers Disease and related dementia because employee never requested accommodation and employers knowledge of disability did not mean it knew or had reason to know the disability might be preventing employee from requesting accommodation). It is a chronic neuropsychiatric condition that develops problems with focusing, impulsivity, or hyperactivity. No. 73 See, e.g., Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 (6th Cir. of Educ., 484 F.3d 357, 366 (6th Cir. Am., 377 F.3d 58, 64 (1st Cir. Yes. 1999). All of these documents can be found at EEOCs website, www.eeoc.gov. The ADA Amendments Act of 2008, signed into law on September 25, retains the three-part definition of disability but makes several significant changes to it with the intent that disability be construed broadly. Rather, an employee only has to say that she requires the employer to provide her with an adjustment or change at work due to a medical condition.12 An employer never has to provide an accommodation that would cause undue hardship, meaning significant difficulty or expense, which includes removing an essential function of the job.13. His territory covers a 3-state region and he must travel to each state three times a year. The employer may proceed with the termination.85. Under most employment legislation, such asAge Discriminationin Employment Act or Title VII, it is fairly obvious whether a person is a part of a protected class. Does the ADA require employers to modify attendance policies as a reasonable accommodation, absent undue hardship? The employer initially agrees to her request and the employee takes 14 days of leave over the next two months. Because she is deaf and, as a result, has difficulty speaking, Rhoda uses a sign language interpreter to voice for her. Example 6: Daniel works as a millwright, and an essential function of his job is repairing and maintaining equipment. One day a supervisor sees an employee he knows to be a recovered alcoholic come in late. 59See TAM, supra note 7, at VII (7.7) (An employer must provide an employee with a disability with reasonable accommodation necessary to enable the employee to participate in the evaluation process); see also Reasonable Accommodation, supra note 11, at Question 14. She provides detailed medical documentation in support of her request. The employee asks that the employer withdraw the written warning and provide him with leave when needed due to complications from his diabetes. Performance problems soon arise, and the employees supervisor brings them to the employees attention. Mediation may provide the parties with a quicker resolution of the case. 85Hernandez v. England, EEOC Appeal No. The sudden, marked change in performance and conduct, the nonsensical answers, and the belligerent behavior all reasonably suggest that a medical condition may be the cause of the employees performance and conduct problems. Traylor v. Horinko, EEOC Appeal No. Her supervisor counsels her about the performance problems, but they persist. However, if an employee does not take medication or receive treatment and, as a result, cannot perform the essential functions of the position or poses a direct threat, even with a reasonable accommodation, she is unqualified.55 Similarly, if an employee does not take medication or receive treatment and, as a result, cannot meet a conduct standard, even with a reasonable accommodation, the employer may take disciplinary action. 12210(b) (2000). It covers a range of different diseases and disabilities, and in some cases can reach to include protection for those who suffer from ADHD. Daniel is not qualified to remain in this position and the employer should explore whether it can reassign him as a reasonable accommodation.21. 20See TAM, supra note 7, at VII (7.7) (A disabled employee who needs an accommodation . The HR director appropriately rejects the supervisors suggestion and recommends that the supervisor begin providing more structured assignments while she requests medical documentation from the employee confirming the side effect. Even when the disability is not causing the performance or conduct problem, some employers still have questions about what action they can take in light of concerns about potential ADA violations. An employee with quadriplegia cannot wear this uniform because he cannot use zippers and buttons and because the shape of the uniform causes discomfort when he sits in a wheelchair. This booklet explains the part of the ADA that prohibits job discrimination. The system would amplify speakers voices over the headset without affecting the way other meeting participants would hear the conversation. State and local government and other public entities apply the title ii to labor unions and help people with disabilities. How common are these types of violations? Psychiatric Disabilities, supra note 18, at Question 30 (example of a coworker courtesy rule that is not job-related and consistent with business necessity as applied to a warehouse worker who does not have regular contact with coworkers and who, because of a psychiatric disability, refuses to engage in casual conversation with coworkers and instead walks away when spoken to or gives a curt response). 1998) (it is not the absence itself but rather the excessive frequency of an employees absences in relation to the employees job responsibilities that may determine if she is qualified); and Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. It is the most common mental condition that affects children, though it also affects adults. See Question 13 in EEOC, Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (July 26, 2000) available at https://www.eeoc.gov/laws/guidance/policy-guidance-executive-order-13164-establishing-procedures-facilitate-provision. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. However, we do know that a case about this form of discrimination is currently moving forward in the court system. 12114 (c)(3) and (5) (2000). Employers might also enforce conduct standards (e.g., rules prohibiting destruction of company property or the use of company computers to access pornography). 32Cf. A judgment under the Rehabilitation Act or the ADA is considered a precedent for the other. Yes. at Question 40; Psychiatric Disabilities, supra note 18, at Question 27. Is ADHD A Learning Disability? - RespectCareGivers Example 46: A federal police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). 2006) (citing to the EEOCs Enforcement Guidance on the ADA and Psychiatric Disabilities, the court stated that the ADA does not require that employers countenance dangerous misconduct, even if [it] is the result of a disability); Calef v. Gillette Co., 322 F.3d 75, 87 (1st Cir. Rask v. Fresenius Med. 26. When her supervisor starts asking her about her behavior, she responds with answers that make no sense. The ADA prohibits discrimination against applicants and employees who meet the statute's definition of a "qualified individual with a disability." 4 The ADA defines a "disability" in three ways: A physical or mental impairment that substantially limits one or more of the major life activities of an individual A record of such an impairment . What to Know About ADHD as a Disability and Benefits - Healthgrades U.S. Ordinarily, counseling must be completed within 30 days and ADR within 90 days. Because there is insufficient evidence to focus on a medical cause for this behavior, requiring the employee to produce medical documentation or to undergo a medical examination would not be justified. Fair Housing Act 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. 1998) (information specialists unacceptable behavior included abusing library employees of a trade association resulting in the library threatening to bar all of PVAs workers from using its facility); and Mammone v. President & Fellows of Harvard Coll., 847 N.E.2d 276 (Mass. While it is possible that the symptoms or manifestations of an employees disability could, in some instances, disrupt the ability of others to do their jobs that is not the case here. 2007) (instructing jury that conduct resulting from a disability is part of the disability, and not a separate basis for termination, does not grant an employee absolute protection from adverse employment actions based on disability-related conduct because employers may show business necessity or direct threat to justify their disciplinary actions); Sista v. CDC IXIS N. Am. 20. The EEOC also has published documents on telework as a reasonable accommodation and accommodations commonly provided in certain types of jobs (e.g., attorney positions, the food service industry, and health care jobs). Official websites use .gov Before a formal investigation, the EEOC may select the charge for its mediation program. The ADA does not compel employees to ask for accommodations at a certain time.23 Employees may ask for reasonable accommodation before or after being told of performance problems. Although ADHD is not considered a learning disability, research indicates that from 30-50 percent of children with ADHD also have a specific learning disability, and that the two conditions can interact to make learning extremely challenging. Sometimes. Example 34: An office worker with epilepsy who is ineligible for FMLA leave has two seizures at work in a three-month period. Co., 136 F.3d 1047, 1052 (5th Cir. In response, the employee requests a reasonable accommodation. How can the professor build a strong case? See Reasonable Accommodation, supra note 11, at Question 19, Example A. Psychiatrists and psychologists push to get ADHD diagnosis on NDIS 68 29 C.F.R. However, there could be many reasons the employee is asleep. an inability to ensure a sufficient number of employees to accomplish the work required; a failure to meet work goals or to serve customers/clients adequately; a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; incurring significant additional costs when other employees work overtime or when temporary workers must be hired. A PIP should generally be considered a situation requiring expedited handling of a request. Example 14: Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Data and statistics about ADHD. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. The termination is justified as long as the employer holds the employee to the same performance standards as other programmers.16. 1630.14(c) (2007). Due to a recent disability, Daniel no longer can climb and must work only at ground level. See also Longen v. Waterous Co., 347 F.3d 685, 689 (8th Cir. 42 U.S.C. 2007) (unpublished) (employers request that employee undergo a psychiatric examination was job-related and consistent with business necessity where his behavior and job performance deteriorated after he returned from medical leave for treatment of a psychiatric illness). 4 42 U.S.C. 42See Bing v. Danzig, EEOC Petition No. The employer provides the reasonable accommodation and Nasser now performs all of his job duties successfully. After receiving the warning, the employee notifies his employer that his absences were related to his diabetes which is not well controlled. 15. 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? 01996955 (January 16, 2002) (employer did not have to excuse employees persistent tardiness due to alcoholism and thus its use of progressive discipline, culminating in termination, was lawful). Yes. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job-related and consistent with business necessity, and thus Marys supervisor may discipline her as long as the same discipline would be imposed on a non-disabled employee for the same conduct. 60 See Degnan, supra note 37. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. Similarly, employers must provide employees with disabilities with equal access to programs granting flexible work schedules and modified schedules.69, Example 32: An employee requests a nine-month leave of absence because of a disability. Compare Reasonable Accommodation, supra note 11, at Question 44 (if an employer is able to show that the lack of a fixed return date causes an undue hardship, then it can deny the leave) and Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648-50 (1st Cir. Americans with Disabilities Act | U.S. Department of Labor However, the supervisor cannot force the employee to accept an accommodation. . 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 temporary postponement of the PIP to process the request for a reasonable accommodation ensures that, if a reasonable accommodation is needed, the employee will have an equal opportunity to improve her performance.33 If the employer determines that the employee is not entitled to a reasonable accommodation (e.g., the employee does not have a disability), the employee should be so informed and the PIP should begin. Example 8: A county government employee does not disclose her chronic fatigue syndrome, even when she begins having performance problems that she believes are disability-related. Example 12: A blind employee has frequent disputes with her supervisor. This is not equal employment opportunity.). Example 21: Marys disability has caused her to yell at and insult her supervisor and coworkers. If the employee only mentions the alcoholism but makes no request for accommodation, the employer may ask if the employee believes an accommodation would prevent further problems with performance or conduct. Because the supervisor knows about the deteriorating eyesight, she may (but is not required to) ask if the employee needs a reasonable accommodation, such as magnifying equipment, software that reads material from a computer screen, or large print. Cf. 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. Americans with Disabilities Act: What is the ADA? - Understood 4. 27. Example 44: A professional office requires that its employees wear business dress at all times. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them. However, the fact that the employee did not ask for an accommodation until being placed on a PIP does not relieve the agency of its obligation to provide reasonable accommodation if the employee has a disability and an accommodation will help improve her performance.32 10. Example 35: An employee works as an event coordinator. 46 Cf. The point of the employers comments should be a clear explanation of the employees performance deficiencies or misconduct and what he expects the employee to do to improve. 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. That means the professor must gather as much evidence as possible to build his case. If a charge filed with a FEPA is also covered under the ADA, the FEPA will dual file the charge with the EEOC but usually will retain the charge for investigation. Although the grocery store does not have a rule specifically prohibiting physical contact with customers, refraining from such conduct is an inherent part of treating customers with appropriate respect and courtesy.53. Although the EEOC found a failure to provide reasonable accommodation, the decision stated that this violation did not justify Degnans physical and verbal rampage in response to the agencys failure to provide accommodation. While the employees unpredictable absences cause some problems, the employer has managed to adjust to the situation without burdening other employees or falling behind in the workload, the employee has made up work where he could, and the employee has always notified his supervisor immediately when he realizes he needs to take leave. Carlos and his doctor agree that Carlos can probably manage to wear dress shoes for this limited time. However, the ADA does not require employers to establish employee assistance programs or to provide employees with an opportunity for rehabilitation in lieu of discipline. Many employers recognize that employees need time off and therefore provide paid leave in the form of vacation or annual leave, personal days, and sick days. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. He does not mean to upset anyone, but he cannot control this behavior. 2003) (employers knowledge that employee has bipolar disorder insufficient to support claim that employer should have known that employees request to leave work immediately because she was not feeling well was related to her disability and therefore employee could be charged with an unexcused absence); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. The employer has a policy of granting unpaid medical leave for one year but it refuses this employees request and terminates her instead. Certain laws may require employers to extend leave, such as the ADA (as a reasonable accommodation) and the Family and Medical Leave Act.68. 19 An employer cannot penalize an employee for work missed while the employee took a significant amount of leave as a reasonable accommodation. The supervisor has violated the ADA by not providing an effective reasonable accommodation to have a meaningful discussion with the employee.60 Possible accommodations include a written exchange (e.g., e-mails) if the mistakes are simple ones to address and the discussion is likely to be short and straightforward, or a sign language interpreter if the discussion is likely to be lengthy and complex. ADA, Rehabilitation Act, 29 CFR Part 1630, Commissioner Charges and Directed Investigations, Office of Civil Rights, Diversity and Inclusion, Management Directives & Federal Sector Guidance, Federal Sector Alternative Dispute Resolution, Application of ADA Legal Requirements to Performance and Conduct Standards, Questions pertaining to both performance and conduct issues, Seeking medical information when there are performance or conduct problems, Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems, III. 12210(b) (2000); see also EEOC, Compliance Manual Section on Definition of the Term Disability, Sec. If an employees disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. After receiving the reprimand, the employee requests a reasonable accommodation. The ADAAA (Pub. The ADA does not contain a list of medical conditions that constitute disabilities. If an ADA charge filed with the EEOC is also covered by a state or local disability discrimination law, the EEOC will dual file the charge with the FEPA but usually will retain the charge for investigation. Wait, ADHD Is a Disability? - HR Daily Advisor 34 See Reasonable Accommodation, supra note 11, at Question 10. (An employer may not discipline or terminate an employee with a disability if the employer has refused to provide a requested reasonable accommodation that did not constitute an undue hardship and the reason for the unsatisfactory performance was the lack of accommodation.) In this Example, the employer may proceed with counseling Odessa, but if a reasonable accommodation could have been provided that would help Odessa resolve the performance problem (without causing undue hardship), any subsequent disciplinary action by the employer for the same problem would violate the ADA. The employee tells the employer about these difficulties and informs the employer about manufacturers that specialize in making clothes for persons with disabilities. See also Estades-Negroni v. Associates Corp. of N. The employer does not have to withdraw the written warning, but it must grant the requested accommodation unless it would pose an undue hardship. 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. . 1-844-234-5122 (ASL Video Phone) 12. Experts appointed by the court to research . This fact sheet provides only a brief review of the ADAs statutory framework as it is relevant to performance and conduct standards. Ga. 2003) (upholding termination of grocery clerk who had uncontrollable outbursts of profanity, vulgar language, and racial slurs as a result of Tourette Syndrome because such conduct impermissible in front of customers); and Buchsbaum v. Univ. Thus, the employer reprimands the employee for being tardy. 01A41079 (March 30, 2004); see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. Nevertheless, the supervisor tells Jenny she can no longer use the kitchen because of her failure to clean up the spill. The supervisor observes Jenny spilling some of her drink on the counter in the office kitchen, and notices that she fails to clean it up. LockA locked padlock 16See Yindee v. CCH Inc. 458 F.3d 599, 602 (7th Cir. The supervisor and DPM determine that a reasonable accommodation might help address the employees performance problems. 1630.2(m)-(n) (2007). Nonetheless, the supervisor approaches the employee and begins verbally discussing mistakes she has been making. 21See Jay v. Intermet Wagner, Inc., 233 F.3d 1014, 1017 (7th Cir. This information supports a conclusion that the employees request has become one for indefinite leave. She has exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. is by definition job-related and consistent with business necessity.); Mincer v. Alvarez, EEOC Petition No. 1630.14(b)(1)(2007). 2001) (employer is not required to give an open-ended schedule to allow an employee to come and go as he pleases); Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. There are two laws that directly relate to people with disabilities. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employees drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. Finally, if the individual is regarded as having a mental or physical impairment, the individual is considered disabled under the ADA's first definition of disability. Dyslexia FAQ. See also TAM, supra note 7, at II (2.3(a)). A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. Example 30: A supervisor finds an employee asleep at his desk. Care N. Must an employer who has a sufficient basis for requesting medical information or requiring a medical examination take such steps instead of imposing discipline for poor performance or conduct? The ADA permits an employer to request medical information or order a medical examination when it is job-related and consistent with business necessity.62 Generally, this means that the employer has a reasonable belief, based on objective evidence, that an employee is unable to perform an essential function or will pose a direct threat because of a medical condition.63 The scope and manner of any inquiries or medical examinations must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.64, An employer must have objective evidence suggesting that a medical reason is a likely cause of the problem to justify seeking medical information or ordering a medical examination.
