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LAS VEGAS—“Is employee misconduct protected under the ADA?” asked James J. McDonald Jr., an attorney in Fisher & Phillips’ Irvine, Calif., office, at the start of a concurrent session June 28, 2011, during the Society for Human Resource Management’s (SHRM) 63rd Annual Conference & Exposition called “My Disability Made Me Do It.”
While one might assume that the answer to that question is “no,” employees are increasingly using disability as a “get-out-of-jail-free card” when caught engaging in misconduct, he told attendees.
For example, employers were required to accommodate, under the Americans with Disabilities Act (ADA), the following employees:
A 911 operator whose narcolepsy made him fall asleep on the job.
A county custodian with borderline mental retardation who was twice criminally convicted of stealing items from offices she was cleaning.
A medical transcriptionist with obsessive-compulsive disorder who repeatedly came to work late, or not at all.
An employee with bipolar disorder, who, when given a performance improvement plan, threw it across the room and shouted profanities. She later kicked her desk and said “They’ll regret this." How did this come about?
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” New Equal Employment Opportunity Commission (EEOC) regulations state that certain conditions that are often related to employee misconduct will always substantially limit major life activities, including intellectual disability (formerly mental retardation), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia, and narcolepsy and sleep disorders.
Under the ADA, the employee must be able to perform the essential functions of the job, with or without reasonable accommodation. In the context of mental or emotional disabilities that may lead to misconduct, reasonable accommodations may include modified work schedules, leaves of absence, job restructuring, transfer or reassignment, work-at-home arrangements, or modification of policies or training.
However, McDonald said, there will be cases where no accommodation can take care of the problem. “This is the core of our ability to be able to manage in this area,” he said. The employee still must, with accommodation, be able to do the job.
Limits on Duty to Accommodate
There are two different standards as to how far an employer must go to accommodate disability-related misconduct, McDonald noted. The rules in the U.S. appellate courts of the 9th and 10th circuits, which encompass the western part of the United States, are stricter than elsewhere. In those circuits, an employer may only discipline a disabled employee for misconduct related to a disability where drugs or alcohol are involved; the employee poses a “direct threat” to the health or safety of himself or others; or the accommodation would be an “undue hardship,” which is not well defined and usually does not take into account disruption in the workplace.
The other federal circuits are bound by the EEOC’s rules, which provide that an employer may discipline an employee for violating a workplace conduct standard where the misconduct is related to a disability “if the standard is job-related for the position in question and consistent with business necessity.”
In addition, an employer is not required to do the following as reasonable accommodations: Eliminate essential job functions; provide a stress-free working environment; provide a new boss to an employee who can’t get along with the present one (but the employer may have to transfer the employee); provide an indefinite leave of absence; or violate other employees’ seniority rights.
McDonald told attendees that there were some steps they could take to try to control this growing problem. “Get your job descriptions up to date,” he advised, “and be sure your policies address misconduct in detail.”
Finally, “ignorance of a disability is a good thing,” he said. “If you don’t know about it, you can’t discriminate on the basis of it.”
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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