Protecting Employers Since 1985

February 2012

By: James B. Sherman, Esq.

The most frequent questions I get concerning the ADA or its amendments under the ADAAA, involve employees whose performance is, or has become, unacceptable. These are people whose employment their employers would prefer to terminate if not for some medical condition asserted as an excuse for their poor performance. An employee who misses too much work or is excessively tardy, if uncorrected (unless FMLA is involved), is often an easy discharge decision unless the employee claims their absence or tardiness is caused by a medical condition. The same holds true for an employee who does poor work, has too many errors, or produces too little work. All too often employers refer to such employees as “untouchable,” leaving them to come and go or do as they please out of fear of breaking the law and/or winding up in litigation. This article will attempt to take some of the mystery out of these situations and provide a process that may help employers properly address underperforming employees, either to improve unacceptable performance or legally discharge them.

Generally, situations like those described above fall into one of three categories: (1) the employee’s asserted medical condition is no excuse, either because it is phony or it has no bearing on the poor performance at issue; (2) the condition, although legitimately causing the performance problems, cannot be reasonably accommodated, rendering the employee unqualified to remain employed in that position; or (3) a suitable accommodation exists which, if identified, can provide a means of salvaging an employee’s career and retaining an employee who can once more be productive. However, as is often the case in matters of human resources law, the means of identifying which of these common categories fits a particular individual or scenario can be complicated. Therefore, I recommend addressing them in order.

Regarding the first of the three categories, how does one determine if an employee’s claimed medical condition is (a) legitimate and (b) the cause of a particular attendance or performance problem? The answer virtually always starts with obtaining proper medical documentation of the claimed condition. Where the treating healthcare provider supplies inadequate documentation, employers may be justified in insisting on sufficient information to properly determine this issue. In cases where circumstances call medical documentation into question, it may be appropriate for an employer to require an IME (independent medical exam). Ultimately, between dialogue with the employee and obtaining medical documentation, employers should be able to weed out any cases where the employee’s excuse for unacceptable behavior or performance really is not a legitimate excuse at all; i.e. no disability or medical condition exists or, if one does exist, it simply does not cause or relate to the employee’s disciplinable issues.

As to the second of the above categories, where there is no reasonable accommodation that will allow the employee to meet acceptable performance standards, discharge or a job transfer may be called for. However, the trickiest challenge is getting to this conclusion by taking the proper path. This path must be one that genuinely allows for the possibility that the individual instead falls into the third category of someone who can be accommodated or otherwise counseled toward improved performance. Fortunately, the EEOC and numerous federal courts have provided a five-step process to explore reasonable accommodations in good faith:

1. Meet with the employee.

2. Obtain relevant medical documentation.

3. Ask what accommodations are sought or needed.

4. Show some sign of considering the accommodation.

5. Accept and implement the requested accommodation, devise an alternative accommodation that works, or determine that no reasonable accommodation exists.

Note that step numbers 1 and 2 in effect weed out my category one people – employees whose claimed disabilities or medical conditions are phony or, even if legitimate, are not the cause of the employee’s performance problems. The remaining step numbers 3 through 5 functions to determine which of categories two or three any other employees belong; i.e. whether they can or cannot be reasonably accommodated. In the end, employees with disabilities and medical conditions are indeed “touchable,” so long as employers follow this process to determine in good faith whether to terminate or salvage an employee’s employment.

Questions? Please contact James B. Sherman, Managing Shareholder of the Minneapolis, MN office of Wessels Sherman at (952) 746-1700 or .

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