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Performance and Conduct Issues

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    1. Performance and Conduct Issues Americans with Disabilities Act (ADA) As amended, 2008 Effective January 1, 2009

    2. Agenda Basic Legal Requirements Application of Basic Legal Requirements Performance Standards Conduct Standards Attendance Issues

    3. How the ADA Applies to Performance and conduct Issues Employee/applicants disability typically has no bearing on performance or conduct problems Generally, performance and most conduct issues should be addressed in the same manner as done with employees/applicants without disabilities

    4. Reasonable Accommodation Role Sometimes an employee/applicants disability may contribute to performance or conduct problems When this is the case, a simple reasonable accommodation often may be all that is needed to eliminate the problem.

    5. Basic Legal Requirements An employee/applicant with a disability must be qualified: Satisfy requisite skill, experience, education, and other job-related requirements Be able to perform the essential functions with or without reasonable accommodation

    6. Requirements (Examples) Possess certain physical or mental abilities (For example exercising good judgment) Possess specific training Meet health or safety requirements Demonstrate certain attributes (For example ability to work with others or to work under pressure)

    7. Business Necessity When/if an employee/applicant cannot meet a specific job or application related requirement because of a disability, the ADA requires that DHS demonstrate the importance of that requirement by showing how it is job-related and consistent with business necessity.

    8. Reasonable Accommodation DHS may have to provide reasonable accommodation to enable an employee/applicant to perform the essential functions or meet job-related requirements, unless an accommodation would impose an undue hardship. (See DHS Form RA-1, 03/98 and Fact Sheet 12/08 available at http://www.hawaii.gov/dhs in the Civil Rights Corner)

    9. Performance Standards DHS establishes job-related requirements, including: Specific tasks or assignments (essential and marginal) Other job-related requirements (For example, working well with others, serving public in a professional manner, handling pressure appropriately, meeting deadlines, hours of work)

    10. Evaluation of Performance DHS establishes method/s to evaluate job-performance; including: How well employee is meeting basic job requirements How well employee is performing essential and marginal functions How well employee is meeting production standards

    11. Production Standards Production standards refer to: Quantitative Standards Qualitative Standards (Employees/applicants with a disability must meet the same production standards as other employees/applicants in or applying for the same position) Reasonable accommodation never requires lowering a production standard but may require DHS to provide an accommodation to meet the standard Appendix to ADA Regulations, 29 C.F.R., 1630.2 (n)

    12. What Should Supervisors Do? Employee discloses that s/he has a disability in response either to receiving a lower performance rating, or to his/her supervisor raising the issue of a performance problem Response: Give lower rating and reiterate that performance problem must be corrected Make clear that employee earned the lower performance rating, regardless of whether the disability played a role May ask why employee believes that disability plays a role in performance problem and whether employee is asking for reasonable accommodation.

    13. What Should Supervisors Do? Employee asks for reasonable accommodation in response to a lower performance rating/performance problem Response: Do not ignore request for reasonable accommodation, or deny an accommodation because employee has a performance problem or has received a lower performance evaluation Do not refuse to provide reasonable accommodation as punishment Remember that an employee can request accommodation at any time, including after being told about a performance problem or receiving a low evaluation Provide employee DHS Reasonable Accommodation Form and Fact Sheet and explain the process for requesting a reasonable accommodation (See DHS Form RA-1, 03/98 and Fact Sheet 12/08 available at http://www.hawaii.gov/dhs in the Civil Rights Corner)

    14. Scenario #1 Employee is put on a 90-day performance improvement plan (PIP) and requests reasonable accommodation Supervisor postpones PIP and after discussing request with Civil Rights Compliance Staff (586-4955) recommends approval of request. PIO commences Did the supervisor have to postpone the PIP? Response: Supervisor may need to determine what happens to an employee while a request for reasonable accommodation is being processed, for example, require an employee to perform only those job functions for which accommodation is not needed.

    15. Conduct Standards DHS may discipline an employee with a disability for violating a conduct standard if the disability does not cause the misconduct. Be sure that employee is held to the same conduct standard as other employees. In most cases, the disability will not be relevant to any conduct violations.

    16. Scenario #2 Coworkers frequently taunt an employee with cerebral palsy because of speech impediment. Employee does not report the coworkers behavior to the supervisor. Instead, employee retaliates by destroying some of the coworkers property How should the supervisor respond? Response: DHS may discipline an employee with a disability if the disability causes violation of a conduct rule which is job-related and consistent with business necessity AND if other employees are held to the same standard. (Source: 42 U.S.C. sec 12121(b)(6), 29 C.F.R. sec 1630.10 and 1630 15(c) Ques 35 in Reasonable Accommodation Guidance.)

    17. What to do where Disability Causes Misconduct Requirement that conduct rules be job-related and consistent with business necessity does not prevent DHS from developing and enforcing wide range of conduct rules/standards which are job-related and consistent with business necessity, such as: - Prohibiting violence or threats of violence - Prohibiting stealing - Prohibiting destruction of property - Insubordination - Showing disrespect to clients, customers, and the public - Inappropriate behaviors between co-workers - Prohibiting alcohol or illegal drug use

    18. Ambiguous Conduct Rules Can DHS hold an employee with a disability accountable? For example: Disruptive Behavior Manifestation or symptom of a disability affecting conduct Frequency of occurrence of the manifestation/symptom Nature of job Specific conduct at issue Working environment

    19. When Supervisor Learns About a Disability AFTER Misconduct has Occurred If employee states that his/her disability is the cause of the conduct problem, and termination is the appropriate form of discipline, DHS may proceed with termination. ADA would not require further discussion about the employees disability or a request for reasonable accommodation. If employee states that a disability is the cause of the misconduct, and something less than termination is the appropriate disciplinary action, then employer may ask about the relevance of the disability and whether employee is requesting reasonable accommodation to avoid future misconduct.

    20. Denial of Reasonable Accommodation Reasonable Accommodation cannot be withheld as a punishment for a conduct violation. If DHS refuses to provide an employee with a disability with a reasonable accommodation that could assist him/her in controlling his/her behavior and preventing future conduct violations (without causing undue hardship), the DHS has violated the ADA

    21. Medication and Treatment In requiring an employee with a disability to comply with a conduct standard, DHS may not require the employee to receive or change treatment for the disability. Beyond DHS expertise DHS (supervisors and/or employee) comments about the disability and its treatment could lead to potential ADA claims. For example, DHS regarded the employee as having a disability

    22. Practical Guidance Generally inappropriate for DHS to focus discussion about a performance or conduct problem on an employees disability Focus should be on correcting performance problems and avoiding future misconduct Emphasizing the disability risks distracting from the primary focus on workplace problem and can risk a regarded as claim Generally preferable for an employee (or applicant), rather than DHS to raise disability issue

    23. Timing of Reasonable Accommodation Requests Although the ADA does not require an employee with a disability to request a reasonable accommodation at a specific time, the timing of the request is important. DHS does not have to rescind discipline or other actions warranted by poor performance or misconduct. But reasonable accommodation may be required going forward in order to rectify the performance or conduct problem. If an employee with a known disability has a performance or conduct problem, DHS may ask whether the employee needs a reasonable accommodation if there seems to be a connection between the disability and the problem. Alternatively, DHS may ask what steps can be taken to improve an employees performance or conduct without mentioning the disability or accommodation.

    24. Scenario #3 John has failing eyesight due to macular degeneration, but does not want to acknowledge his vision problem. DHS supervisor is aware of Johns capabilities but realizes that he is making errors that seem to be related to his deteriorating vision. How should the supervisor handle this situation?

    25. Practical Guidance When providing feedback/performance review/discipline DHS may have to provide a reasonable accommodation to an employee with a disability to enable the employee to understand the nature of the performance or conduct problem and to have a meaningful discussion about it. The ADA permits DHS to request disability-related (medical) information from, or order a medical examination of, an employee if the request is job-related and consistent with business necessity. (For more information on this subject see slide presentation on Reasonable Accommodation Requests Medical Documentation.

    26. Attendance/Leave and Reasonable Accommodation When an employee with a disability requires leave beyond that provided for under an employees benefit program, DHS may have to grant the request as a reasonable accommodation, if there is no undue hardship (For example, additional unpaid leave, modified schedule, etc.) However, providing reasonable accommodation does not mean DHS has to exempt an employee with a disability from time and attendance requirements.

    27. Chronic, Frequent and Unpredictable Leave Reasonable accommodation does not require that DHS tolerate chronic, frequent, and unpredictable tardiness or absences. Such behaviors: Will likely demonstrate an inability to perform one or more essential functions of the job May enable DHS to demonstrate that any accommodation would impose an undue hardship. Courts have uniformly rejected any requirement to extend leave indefinitely for chronic, frequent, and unpredictable absences.

    28. Indefinite Leave vs. Extended Medical Leave Indefinite leave is when an employee (or doctor) can give no date of return, or predict whether he/she will return to work An approximate date of return is NOT indefinite leave (For example, will return at the beginning of November) A time period for return is NOT indefinite leave (For example, will return between November 15 and December 14) DHS may have to grant extended medical leave as a reasonable accommodation to employees with disabilities, absent undue hardship. DHS does not have to grant leave of indefinite duration, which can impose an undue hardship on DHS operations and render employee unqualified.

    29. Requests for Reasonable Accommodation After Attendance Problems Develop When an employee with a disability requests reasonable accommodation after attendance problems develop, resulting in disciplinary action, DHS may proceed with the discipline. DHS must also consider and, if appropriate, grant a reasonable accommodation unless it would pose an undue hardship.

    30. Source/s Timothy Riera Director, Honolulu Local Office U. S. Equal Employment Opportunity Commission For more information: Visit: http://www.hawaii.gov/dhs Civil Rights Corner Visit: http://www.dcab.gov (training modules) Call: 586-4955 E-mail: gwatts@dhs.hawaii.gov