If an employee has behavioral problems at work, the employer would naturally want to address the misconduct. But what if a psychiatric disability is the cause of the behavior? What are the rules for employers who want to discipline an employee who has a disability under the Americans with Disabilities Act (ADA)? In this video, Legal Editor Joan Farrell, answers a question via HR.BLR.com's Ask the Expert service, in which she provides employer do's and don'ts in a scenario where ADA disabilities and employee discipline intersect.
Hi. I’m Joan Farrell, a Legal Editor at HR.BLR.com. We recently received an Ask the Expert question from one of our subscribers regarding employee discipline that had possible Americans with Disabilities Act implications.
The subscriber wrote: "One of our employees is exhibiting strange behaviors and has confronted a co-worker. Can we require her to go to our Employee Assistance Program, or EAP?"
Employers must proceed with caution when referring an employee to EAP based on the employee’s behavior. This is because the referral may leave an employer vulnerable to a claim that it took adverse action against the employee because the employee was "regarded as" having a disability.
To avoid such claims, it is important for an employer to focus on an employee’s performance problems instead of using terms that indicate the employer thinks the employee has a disabling condition. For example, if confronting a co-worker is a violation of your organization’s workplace conduct policy, you may suggest that the employee utilize the EAP for assistance in resolving the problem.
It is important to approach a workplace performance problem as a disciplinary issue rather than a medical issue and to be very specific about the actions that violate your policies. You should also document the disciplinary process. If the employee refuses to use your EAP or uses it without success, your organization may use its disciplinary process to address any disruptive behavior that violates workplace policies.
The ADA does not require an employer to excuse behavior that violates an employer’s conduct standards, even if the behavior is caused by an employee’s disability. If the employee indicates that her behavior is related to a medical condition, your organization should engage in the interactive process with the employee to determine if there is a reasonable accommodation—for example, leave for treatment--that would allow the employee to perform the essential functions of her job.
In its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, the EEOC provides several examples of addressing misconduct in the workplace. The guidance includes the following Q&A:
"May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?"
Thee EEOC answered: "Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property.
Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA."
Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.
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