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Your Employee Matters


By September 1, 2008No Comments

Most employees with disabilities can maintain acceptable conduct on the job. However, on occasion, some employees with disabilities might exhibit unacceptable conduct at work. These situations leave employers with concerns about discipline, accommodations, and the ADA.

The Job Accommodation Network (JAN) consulting service provides job accommodation ideas helping employees with disabilities perform their jobs. Although it might seem challenging to identify such accommodations, following these guidelines can help resolve these workplace issues quickly:

First, create a workplace policy on conduct. Provide clear explanations of expected, and prohibited, behavior. Specific behaviors to address might include: destruction of property, using profanity at work, insubordination, or leaving one’s work area. Vague statements such as “employees must act professionally” might be interpreted many ways, and it can be difficult to determine whether or not an employee’s behavior complies with such a statement. Precise wording of your policy can help ensure that employees understand the policy. Provide your policy to employees and offer training and periodic reviews to ensure compliance.

Next, train managers and supervisors to apply your policy in a consistent and reliable manner to all employees. Applying a policy often means “counseling” employees on conduct issues, using “performance plans,” or disciplining employees for conduct violations. The ADA does not require employers to withhold or rescind disciplinary actions from employees with disabilities, nor to lower standards of conduct. Furthermore, the ADA does not prevent employers from maintaining safe workplaces (free from violence or threats of violence). Require managers and supervisors to apply your policy equally to all employees.

Then, encourage employees with disabilities to request job accommodations that ensure compliance with your conduct policy. Job accommodations can help minimize the likelihood of employees with disabilities violating your conduct policy, such as attendance rules or computer use guidelines.

Some examples of job accommodations that help employees with disabilities comply with conduct policies are:

  • A sales manager with anxiety is required to participate in staff meetings by sharing one thought or idea with the group. Due to her disability, she has difficulty speaking in front of groups. The employer allows her to submit her idea or thought via e-mail soon after the staff meeting.
  • Due to chronic pain, a retail employee experiences irritability during long work shifts when medications wear off. Thus, it becomes difficult to maintain satisfactory customer service. As a job accommodation, the employer shortened the employee’s work shift, which helped manage pain, lessened irritability, and improved the employee’s customer service.
  • A claims processor who had ADHD frequently disrupted teammates with impulsive communication and socialization. To help control his behavior, the employer provided a job coach to teach strategies for managing impulsiveness and reinforcing appropriate workplace conduct.
  • An employee with depression enjoyed reading inspirational phrases on various Web sites to help her manage her mood at work. However, using office computers to surf the Internet violated company policy. The employer suggested bringing inspirational books to work, and allowing her to read short portions throughout the day.

Finally, if job accommodations don’t prevent conduct violations, or if employment separation is imminent due to the severity of the conduct violation, proceed with termination. Be prepared to show that the conduct standard was job-related and consistent with business necessity. According to the EEOC Guidance on ADA and Psychiatric Impairments, some conduct standards might not be job-related for a specific position, and if not, imposing discipline or termination could violate the ADA.

Some JAN users are concerned about the outcome of a recent court case called Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). The case, from Washington State, involved the discipline and subsequent termination of an employee with bipolar disorder. Washington’s State Human Rights Commission issued guidance on this case:

JAN strives to help employers understand their responsibilities under the ADA, and hopes that this article will help you succeed in writing and implementing conduct policies in your business.

Suzanne Gosden Kitchen, Ed.D.
Senior Consultant

(Courtesy of the Job Accommodation Network)