Americans with Disabilities Act’s employment provisions took effect in July 1992. The courts, employers and their lawyers, are still trying to get it right. The law is different from other anti-discrimination laws. Most employment laws prohibiting discrimination command equal treatment. The ADA, though, requires something more: equal treatment via “reasonable accommodation.” The form and extent of the accommodation obligation has vexed everyone who works with the ADA, particularly those who do not regularly interpret or apply the statute. In California, the task is made more difficult by the Fair Employment and Housing Act’s more inclusive definition of “disability.”

One issue that arises is whether employers must tolerate poor performance or lower productivity as “reasonable accommodations” for a disability. The Equal Employment Opportunity Commission, the federal agency charged with administering the ADA, recently issued a “Fact Sheet” addressing this issue in a helpful question-and-answer format. “The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities” is available at the EEOC’s Web site, at eeoc.gov/facts/performance-conduct.html.

Background

The Fact Sheet begins with a review of the ADA’s basic anti-discrimination provisions. The ADA prohibits employment discrimination against a “qualified individual with a disability.” The term “disability” includes physical or mental impairments that substantially limit one or more major life activities (or a “record” of such impairment, or being “regarded as” having an impairment).

Individuals with disabilities obtain the ADA’s protection if they are “qualified.” That means they must meet the job’s skill, experience and education requirements. For example, the employer may have legitimate “qualification standards,” such as specific training, licenses, certifications or even physical or cognitive skills.

Qualifications also may include demonstrated job-related skills, such as remaining calm under pressure or the ability to work harmoniously with others.

These qualification standards must be “job-related and consistent with business necessity,” or they cannot be used to screen out applicants with disabilities.

To be “qualified,” an individual also must be able to perform the essential functions of a job with or without reasonable accommodation. “Essential” functions are the critical elements without which the job’s purpose could not be fulfilled. “Marginal” functions are less important and can be removed or transferred to others without affecting the job’s core purpose.

“Reasonable accommodation” may be required to enable an otherwise qualified individual to perform essential job functions. Accommodation also may be necessary to enable an individual to meet a qualification standard that is job-related and consistent with business necessity. Reasonable accommodations take many forms. They generally are alterations to the work environment or the job that provide equal opportunity. The form of accommodation is flexible. But employers do not have to provide accommodations that would cause an “undue hardship,” remove an essential job function, or result in a “direct threat” to the health and safety of the employee or others. The key to successful reasonable accommodation efforts, and to avoiding litigation, is an “interactive process” between the employer and employee.

Performance Standards

The EEOC defines “performance standards” as including “job-related requirements, the specific tasks or assignments that an employee must perform, and methods to evaluate performance.”

The EEOC’s Fact Sheet makes clear that employers may apply the same qualitative or quantitative production standards to individuals with disabilities as it applies to other employees.

As an example, if a company requires an employee to make 30 widgets in a day, an individual with a disability is not entitled to a “reasonable accommodation” of making only 20. “Reasonable accommodation” may entail making an adjustment to the work environment (such as providing a special chair), or removing a non-essential function, that will enable the individual to meet the production standard.

The Fact Sheet also addresses performance evaluation criteria. According to the EEOC, an employer should use the same evaluation criteria to determine an employee’s productivity, regardless of whether the employee has a disability. If an employee attributes poor performance to a disability, the employer need not change the rating, but may be required to explore possible accommodations to bring the individual’s performance up to standard.

Conduct Standards

The Fact Sheet also covers employer standards of conduct. The EEOC differentiates between conduct that is “caused” by a disability and other conduct. As the EEOC points out, individuals with disabilities should be held to the same conduct standards as other employees. A disability that is not causally related to bad conduct is not entitled to any protection at all.

The EEOC then addressed when a disability may cause violation of an employer’s facially neutral conduct standards. The Fact Sheet reflects the EEOC’s view that a conduct standard may be upheld if it is “job-related and consistent with business necessity.” But then the EEOC explains that employers are free to prohibit insubordination, profanity or physical behavior, threats, and the use of illegal drugs or alcohol.

The key is consistent application of the policy to employees with and without disabilities. Without expressly saying so, the EEOC’s analysis appears to conflict with the 9th Circuit’s decision in Gambini v. Total Renal Care, 486 F.3d 1087 (9th Cir. 2007), in which the court held that a bipolar employee’s outburst was caused by a disability and, therefore, could not serve as the basis for her discharge.

It will be interesting to see how the courts square the new Fact Sheet with prior decisions in this area.

If an employee raises the issue of disability during the investigation or disciplinary action process, the employer may move forward with a discharge decision that is unrelated to the disability. If the employer chooses not to discharge, it should engage in the interactive process to determine whether some form of accommodation will enable the employee’s future compliance with the conduct rule.

Other Issues

The EEOC’s Fact Sheet addresses a number of additional issues that may resolve some confusion about this area of the law.

For example, the agency affirms it is inappropriate for an employer to focus on whether behavior is caused by a disability, to suggest treatment or to recommend or offer medication. On the other hand, the Fact Sheet discusses narrow circumstances under which employers may require medical clearance before an employee is permitted to return to work.

The Fact Sheet also addresses the extent to which employers must flex their attendance policies and leaves of absence programs for individuals with disabilities. Of note, the EEOC opines that indefinite leave is not required. Nor must an employer permit employees to come and go as they see fit as a form of accommodation.

Conclusion

The EEOC’s most recent Fact Sheet joins a growing body of informal guidance the agency has issued to the public seeking to better understand the ADA.

Employers and employment lawyers may benefit from reviewing the agency’s viewpoint on this difficult area of the law.

It should be noted that Congress is considering modifications to the ADA, particularly an expansion of the definition of “disability.” It remains to be seen whether new legislation will render the EEOC’s compliance documents, and the hundreds of court decisions interpreting the ADA, obsolete.

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