Unsatisfactory Performance Excused by Disability?
Today Federated Insurance is sharing one our “HR Questions of the Month” regarding employment-related practices liability issues.
Question: Is an employee who reports a reading/writing disability covered under a protected class? Are there suggestions on how to handle if this employee reported this after receiving a written reminder for performance related issues when no prior notice had been provided to HR either verbally or in writing. The employee in this instance has been employed by the company for 8 years.
Response: The federal Americans with Disabilities Act (ADA) generally defines a disability as a physical or mental impairment that substantially limits one or more major life activities. An individual can also be considered to have a disability if he or she has a record of such an impairment or is regarded as having such an impairment by the employer. That said, the ADA does not contain a list of medical conditions that constitute disabilities, rather an individualized assessment must be undertaken (using the foregoing definition) to determine if one exists. This means that some people with learning disabilities may indeed have a disability under the ADA, while some may not. Without additional information, it is difficult to opine whether the subject employee is disabled within the meaning of the Act. We recommend that you review the information published at http://askjan.org/media/LD.html for more information as to whether the employee in question is disabled by the ADA.
Whether the employee is protected by the ADA as having a disability or not, however, the employer is not required to excuse unsatisfactory performance on account of the condition. Indeed the EEOC has expressly stated that "[a]n employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard." See question 1 at https://www.eeoc.gov/facts/performance-conduct.html#perf. The EEOC also offers guidance as to the particular issue raised by your inquiry at question 4 at the aforementioned link as follows:
{Guest Post} Guest post provided by Jerry Leemkuil, Federated Insurance. For more than a century, Federated Insurance Companies has provided peace of mind to business owners through valued insurance protection. Learn more about Federated Insurance.
The opinions and advice given by guest post contributors are not necessarily those of NATSO Inc. The posts should not be considered legal advice. Qualified professionals should be sought regarding advice and questions specific to your circumstances.
This article is intended to provide general information and recommendations regarding risk prevention only. There is no guarantee that this information will result in reduced losses, lower premiums, or lower experience modification factors. The content provided is accurate as of February 2015 and is subject to change. This information may be subject to regulations and restrictions in your state and should not be considered legal advice. Qualified counsel should be sought regarding questions specific to your circumstances and applicable state laws. © 2016 Advisors Law Group, All Rights Reserved
By Jerry Leemkuil
By Jerry Leemkuil
Wednesday, June 22, 2016
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