WORKPLACE LAW -
Job Performance Standards for Disabled Employees
Question:
One of my employees recently suffered an accident and is now disabled. His physician states that he is able to perform the essential functions of his job without an accommodation, but my employee is asking to have his quota lowered, stating that he is too tired to perform up to the level required by his job. Does the law require that I lower his quota? This does not seem fair to my other employees in the same job that have to meet their quotas each month.
Answer:
This is a difficult issue to evaluate. Generally, the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act, which prohibit employment discrimination against qualified individuals with disabilities, do not infringe on the right of employers to define jobs and to evaluate their employees according to consistently applied standards governing performance and conduct. Under both laws, employees with disabilities must meet qualification standards that are job-related and consistent with business necessity and must be able to perform the “essential functions” of the position, with or without reasonable accommodation.
Recently, in response to concerns and inquiries by both employees and employers, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing how the ADA applies to a wide variety of performance and conduct issues. The guidance discusses various ADA-related subjects, including performance, conduct, and attendance issues, dress codes, drug and alcohol use, and confidentiality. The guidance recognizes that a core function for any supervisor is managing employee performance. Performance management, if done effectively, can help avoid discrimination, in addition to furthering an employer’s business objectives. Additionally, employees work most effectively when they clearly understand what is expected of them and know that their performance will be measured against a standard that is fair and applied even-handedly. The same principles apply to workplace rules concerning employee conduct.
Among the guidance provided by the EEOC are the following:
Job Performance Standards
- An employee with a disability may be required to 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. Employers should give clear guidance to an employee with a disability (as well as all other employees) regarding the quantity and quality of work that must be produced and the timetables for producing it.
- An employer should evaluate the job performance of an employee with a disability the same way it evaluates any other employee’s performance. An accurate assessment of the employee’s performance may, in some cases, alert the employee that his disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve performance, which can benefit both the employee and the employer.
- If an employer gives a lower performance rating to an employee, and the employee responds by revealing he has a disability that is causing the performance problem, the employer still may give the lower rating. If the employee states that his disability is the cause of the performance problem, the employer should 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 employer may ask whether there is an accommodation that may help raise the employee’s performance level.
Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important, because an employer normally does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.
Attendance Issues
- An employer may have to modify its attendance policies for employees with a disability as a reasonable accommodation. Modifications may include allowing an employee to use accrued paid leave or unpaid leave, adjusting arrival or departure times (e.g., allowing an employee to work from 10 a.m. to 6 p.m. rather than the usual 9 a.m. to 5 p.m. schedule required of all other employees), and providing periodic breaks.
- An employer may impose disciplinary action, consistent with its policies as applied to other employees, for attendance problems that occurred prior to a request for reasonable accommodation. However, if the employee’s infraction does not merit termination but some lesser disciplinary action (e.g., a warning), and the employee then requests reasonable accommodation, the employer must consider the request and determine if it can provide a reasonable accommodation without causing undue hardship.
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