Getting the Right Medical Information Right at the Intersection of Performance and Disability
Many of us have been there. We reach the end of a disciplinary process that has taken countless hours and, at times, involved upwards of a dozen individuals only to have the employee or the employee’s representative claim that a disability “made me do it.”
Frustrating? Absolutely. Whether the employee verbally informs you that he or she believes a disability caused the performance or behavioral issue(s), or whether a human resources representative just discovered there has been a perception of disability by the supervisor all along, the organization has a single response available to it. Managers and supervisors must press pause on taking disciplinary action and initiate an interactive disability accommodation process with the employee. That starts with collecting clear medical information.
Remember, we do this to protect our organizations, follow the Americans with Disability Act (ADA) and properly address employee performance. We enter the interactive accommodation process in order to let the employee show whether the disability claim is legitimate or fabricated, and also to identify and implement reasonable accommodations.
Federal courts have made it clear that employees can cite an employer’s failure to accommodate a disability as a reason for poor or inappropriate job performance. For instance, the U.S. Third Circuit agreed with the plaintiff in Gambini v. Total Renal Care, Inc. (486 F.3d 1087 [2007]) that “conduct resulting from a disability is part of the disability and not a separate ground for termination.”
Consequently, an employer must explore if a disability was the cause of an action or pattern of behavior that would merit discipline. If a disability is found, the employer must then explore if there are reasonable accommodations that, if implemented, would remedy the negative performance or behavior.
Going through the interactive process does not guarantee an employee will be provided accommodations, or even that he or she is disabled. If the process reveals an employee does not have a disability that prevents him or her from performing the job fully or safely, then he or she will be moved back into the organization’s disciplinary process.
Those charged with looking into the possible disability and accommodation must keep open minds. While it can, understandably, be difficult to take seriously an employee who claims a disability immediately after performance issues are raised, withholding judgment and trusting the process to uncover the truth are essential to avoid violating the employee’s rights under the ADA.
Also, the employee must be made to understand that having a disability does not by itself excuse poor performance or bad behavior. While an employer has a legal duty to identify and offer reasonable accommodations, a disabled employee still has obligations to perform satisfactorily up to his or her capacity. If problems persist after an accommodation is provided, discipline returns as an option. In other words, having a disability will not excuse an employee from performance standards, but if his or her performance is disability related, it may be possible to support the employee to be successful.
Conceptualizing ADA Compliance
When you receive a last-minute request for accommodation, pause discipline and begin asking questions. The goals of the interactive process must be to answer the following:
- Does the employee have a disability that has impaired performance in the ways that called for discipline?
- If the employee does have a disability, will reasonable accommodations support full and safe performance of the essential functions of the job?
Managing more than 1,000 discipline-meets-disability cases has led me to develop what I call the Disability Interactive Process HallwayTM. Opening the four doors— or, completing the four key process steps—along the Hallway enable managers, supervisors and HR practitioners to reach a justifiable decision regarding, and achieve the best possible outcome for, an employee who may or may not need workplace accommodations. The doors that lead to ADA compliance are
- Door #1—Clear Medical Documentation,
- Door #2—Exploration of Accommodation Ideas,
- Door #3—Scheduling and Holding a Reasonable Accommodations Meeting, and
- Door #4—Closing the Process Properly.
When the possibility exists that a performance deficiency is partially or wholly caused by a claimed disability, obtaining medical information must be done well. Going through Door # 1 means discovering if the employee has a disability that impairs performance. If the employee’s medical provider or the physician the organization hires to conduct a fitness for duty (FFD) evaluation indicates that performance issues are not related to an ADA-covered disability, then the organization can exit the Hallway and resume the disciplinary process. If a medical provider indicates the disability was partially or wholly responsible for the performance issue, it is time to move on to Door #2.
Illustrating the Importance of Clear Medical Information
Disability claims submitted by or on behalf of employees who are about to be terminated or disciplined in some other way run the gamut from the mundane to the seemingly ridiculous. To mention just one real-world example, a chronically absent employee who was also accused of stealing tools and selling them on a popular website once presented a medical note that read, “Nick has a serious medical condition that impacts his ability to arrive at work on time or call in when running late, and specifically causes him to miss Mondays and Fridays and impairs his good judgment.”
Obtaining a detailed and reliable medical document to support the employer’s decision to make an accommodation or proceed with discipline is crucial. This is even more true when the disability claim seems silly or fraudulent. It is imperative to spend as much time collecting clear medical information as it takes to get the right information. As difficult as going through Door #1 may be, it will never be as onerous as defending an ADA lawsuit.
Returning to Nick, his employer asked Nick’s personal doctor to clarify her medical opinion, going so far as to create a medical questionnaire that plainly asked if Nick’s medical condition would have caused him to steal and sell company property for personal profit. A yes to this question was to be followed with suggestions for any reasonable accommodations that, if implemented, would eliminate such behavior going forward.
The employer pushed the doctor to supply information needed to determine if this was a disability that could be overcome with reasonable accommodations. If the provider stated the employee’s disability did not cause him to steal, then the employer could proceed with termination. Further, if the provider deemed Nick to have a disability that caused him to steal and also stated that no accommodations would mitigate the stealing, then the employer could medically separate the employee. Last, if the provider stuck to her guns and listed accommodations she believed would curb Nick’s stealing, then the employer would explore sending the employee to its own physician for an FFD evaluation for a second, objective and reliable, opinion.
Some may consider the employer’s actions here preposterously unnecessary. While it may seem irrational to expend so much effort on a claim like Nick’s, the employer understood it would be best-served in both the short and long terms to investigate the claim of disability as a mitigating factor.
Disability
Federal courts agree that employers must explore whether reasonable accommodation could eliminate misconduct or performance deficiencies and support a disabled employee in succeeding at work. At the same time, no part of the ADA requires an employer to allow a disabled employee to engage in misconduct even if it is caused by a proven disability. Since, generally, an organization may hold all employees with and without disabilities to the same performance and conduct standards, Nick’s employer was covering all its bases in pressing his doctor to affirm the presence of a disability that caused him to steal and to propose or deny the existence of accommodations that would prevent stealing.
The key concept to understand is that organizations must not delay in engaging in an interactive process with an employee who claims his or her disability “made me do it.” And the organizations must firmly determine both whether the employee has a legitimate disability and whether accommodating a confirmed disability will resolve performance or behavioral problems before deciding on discipline or termination.
Following the strategy of Nick’s employer—going through all four doors along the Hallway—will create considerable work for the organization. But for cases in which keeping on a poor-performing or badly behaving employee would negatively affect operations and terminating the employee could prompt an ADA discrimination investigation and lawsuit, no organization will regret following a thorough interactive process. If nothing else, going through and fully documenting a regular and sound process to confirm and find possible accommodations for a disability will offer protection if litigation does ensue.
Rachel Shaw is the principal consultant of Shaw HR Consulting, a human resources firm specializing in providing consulting and training services to support employer compliance with federal and state disability and leave laws. She is also the author of The Disabled Workforce: What the ADA Never Anticipated. Shaw can be reached at rachel@shawhrconsulting.com.
