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This type of scenario happens from time to time to employers, and the answer will change depending on the situation. If the medical condition is minor (for example, the common cold), then an employer does not have to take the situation into consideration. However, what if the medical issues are more serious?
The Equal Employment Opportunity Commission’s (EEOC’s) guidance Applying Performance and Conduct Standards to Employees With Disabilities states “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 does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.” That being said, employers must be mindful of the timing when they find out about medical situations to determine how to proceed. Let’s look at some examples of how timing can be critical.
Example 1An employee has had performance issues for several months, and the employer has taken the employee through the disciplinary process. The employee has never disclosed a medical condition to the employer, even when the final warning was delivered. When the employee’s performance has still not improved, the organization decides to terminate employment. During the termination meeting, the employee decides to divulge the medical condition at that time. Does the employer have to rescind the termination? According to the EEOC’s guidance Applying Performance and Conduct Standards to Employees With Disabilities, the answer would be no. The employee waited too long to ask for the reasonable accommodation, and the employer does not have to change its position on the termination.
Example 2An employee has had performance issues and knows they are related to a medical issue. The employer has monitored the employee’s performance and has determined it is time to address the issues. During the first counseling meeting about the performance issues, the employee reveals the medical issue to the employer as the reason for the performance issue. Must the employer consider the medical issue and make a reasonable accommodation? According to the EEOC’s Applying Performance and Conduct Standards to Employees With Disabilities and the Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act(ADA), yes, the employer must start the interactive process with the employee and consider reasonable accommodations. However, the employer may proceed with the initial counseling of the employee for the performance issues.
Example 3An employee has performance issues and discloses a medical condition during counseling sessions with the employer on several occasions. The employer never addresses the employee’s medical situations and continues to discipline the employee. The employer ultimately decides to terminate the employee for performance issues. Could this be a potential ADA violation? According to the EEOC’s guidance, yes, this could be a potential negative situation for the employer. Given that the employer never goes through the interactive process with the employee, the employee may have a potential ADA claim against the employer for not making reasonable accommodations.
Employers must be cautious when handling issues related to an employee’s medical condition. The timing of the information disclosure will be key to knowing how to handle a situation. Because each situation is unique, employers should obtain legal advice prior to discipline or termination of an employee who discloses a medical condition affecting his or her performance or conduct to reduce the risk of ADA claims.
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