Each article in our HR Scenario series walks you through a real-life HR scenario. We address how to handle each situation, and look at the complex rules and regulations that apply.
Staying compliant with the Americans with Disabilities Act (ADA) can be challenging! However, remaining diligent in your compliance is vital in protecting both yourself as an employer and your employees. This is especially true in cases involving the termination of an employee with a disability. That’s why, for this week’s HR Scenario, we are going to take a look at essential questions you should consider whenever you find yourself in this situation.
This analysis provides a high level overview of key concepts. It is not intended to serve as legal advice, but is based on good HR guidance. It is always recommended that employers conduct ADA accommodation and risk analysis with an experienced HR professional and/or employment law attorney.
Here are 11 questions to consider when performing a risk analysis prior to terminating an employee with a disability:
1. What is the ADA?
The ADA protects qualified disabled employees from discrimination. The ADA has two separate components:
- A prohibition against differential treatment of disabled employees.
- An affirmative duty to reasonably accommodate disabled employees, who can perform the essential functions of their position, unless doing so would impose an undue hardship on the employer.
2. Are we covered by the ADA?
As a practical matter, the ADA applies to employers who in any way engage in interstate activity. With respect to “size” limitations, its provisions apply to employers who employ 15 or more employees 20 weeks of the calendar year (current or preceding).
3. Is the employee disabled under the ADA?
Not all physical or mental conditions rise to the level of disabilities under the ADA. Here are some questions to help determine whether a physical or mental condition is considered a disability under the ADA:
Is the condition short-term and temporary?
These are generally not disabilities under the ADA.
Does it restrict the employee from only a single job, parts of a job, or certain tasks?
To be considered a disability under ADA, a disability must restrict an individual from performing a class of jobs or a broad range of jobs.
What medical evidence exists to support the claim?
Medical evidence must support that the disability is a physical or mental impairment that substantially limits a major life activity (or a record exists of such impairment; or an individual is regarded as having such an impairment).
Sometimes, but not often, the answer to this threshold issue is so clear that the employer feels comfortable in deciding to terminate an employee solely on the basis that he or she is not disabled, but is simply not performing in a satisfactory manner.
4. Is the employee otherwise qualified?
The next step in the termination analysis is whether the individual is “qualified” to perform the “essential functions” of the job “with or without reasonable accommodation.”
The employee would be “qualified” if they satisfy the skill, experience, education and other job-related requirements they can AND perform the essential functions of the position with or without accommodation.
5. What exactly are the essential functions of the position?
In the termination context, the question often arises whether absenteeism and failure to comply with the professional standards of the job may justify termination of the individual because they constitute “essential functions.”
Attendance is normally considered an essential function of the job if the employer has a standard absenteeism policy that is enforced uniformly. However, a leave of absence may also be considered a reasonable accommodation under the ADA, so employers should exercise caution.
Employers are also permitted to expect employees with disabilities to perform essential functions of the job according to the non-discriminatory job standards expected of all employees. An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.
Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. The ADA does require that standards be “consistent with business necessity.”
Most jobs require that employees perform both “essential functions” and “marginal functions.” The “essential functions” are the most important job duties, the critical elements that must be performed to achieve the objectives of the job. Removal of an essential function would fundamentally change a job. Marginal functions are those tasks or assignments that are tangential and not as important.
See also: Pre-Employment Health Screenings
6. Have reasonable accommodations been requested and offered?
Perhaps the most critical (and difficult step) in the pre-termination analysis involves the question of reasonable accommodation.
A reasonable accommodation is any change in the work environment or in the way things are customarily done that enables an employee with a disability to enjoy equal employment opportunities. An employee generally has to request accommodation, but does not have to use the term “reasonable accommodation,” or even “accommodation,” to put the employer on notice.
Rather, an employee only has to say that s/he requires the employer to provide him/her with an adjustment or change at work due to a medical condition. An employer never has to provide an accommodation that would cause undue hardship, meaning significant difficulty or expense, which includes removing an essential function of the job.
7. Has the employer considered reasonable accommodations?
After receiving a request for reasonable accommodation the employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation.
The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. A comprehensive list of possible reasonable accommodations can be found here.
8. Has the employer requested evidence of the disability requiring accommodation?
The ADA permits an employer to request medical information or order a medical examination when it is job-related and consistent with business necessity.
Generally, this means that the employer has a reasonable belief, based on objective evidence, that an employee is unable to perform an essential function or will pose a “direct threat” because of a medical condition.
The scope and manner of any inquiries or medical examinations must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat. An employer should request that the employee complete and sign a Request for Accommodation & Release of Medical Information form and then the employer should send that release along with an Accommodation Medical Certification to the employee’s health care provider(s).
9. Are there accommodations that the employer cannot provide?
The employer may choose among reasonable accommodations as long as the chosen accommodation is effective.
As part of the interactive process, the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability. If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choose the less expensive or burdensome accommodation as long as it is effective.
An employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. A determination of undue hardship should be based on:
- The nature and cost of the accommodation needed.
- The overall financial resources of the facility making the reasonable accommodation.
- The number of persons employed at this facility.
- The effect on expenses and resources of the facility.
- The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity).
- The type of operation of the employer, including:
- The structure and functions of the workforce.
- The geographic separateness.
- The administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
- The impact of the accommodation on the operation of the facility.
Although disability cases are decided on a case-by-case basis, the fact remains that if the employer can prove that it could not provide reasonable accommodation to enable the person to do the job, then it is legally permissible to terminate.
More on termination: Instruct, Don’t Punish – The Four Steps of Progressive Discipline
10. Did you provide a written response to the employee requesting accommodation?
When the employer grants an employee’s request for reasonable accommodation, there is no requirement that the decision be in writing or that reasons for the decision be provided to the individual.
However, it is considered a best practice to provide the employee a written response to the request for accommodation noting that the employer has engaged in interactive dialogue and identifying which accommodations the employer can offer to the employee, and which may have been considered but would pose an undue hardship to the business.
In addition, when an employer denies an individual’s request for a reasonable accommodation, it should notify the individual in writing of the denial and the reasons for it. The denial should be written in plain language with as much specificity as possible, and should identify the person who made the decision.
Where an employer has denied a specific requested reasonable accommodation but offered to make a different one in its place, the employer’s notice should explain both the reasons for the denial of the requested accommodation and the reasons that it believes that the chosen accommodation will be effective. Additionally, the written response should include both employee and employer responsibilities with respect to the interactive process and ongoing performance evaluation.
11. What documentation exists to show a legitimate non-discriminatory reason for terminating a disabled employee?
A proper “paper trail” can make all the difference in supporting the employer’s legitimate business reason for termination. A proper paper trail includes:
- Names of witnesses.
- Other pertinent factors on violations directly related to the termination reason.
- A record consistent with other employees evaluated to be at the same level of performance (consistency and lack of bias in applying rules, standards and discipline).
- Discipline imposed which is relative to the seriousness of the proven offense.
Consider what prior performance reviews look like. Are they consistent? Finally, ask yourself if the incident which triggered the final warning or discharge was carefully investigated prior to taking serious or final disciplinary action.
If the employee has a confirmed disability recognized under the ADA and is otherwise qualified, the employer has a duty to engage in the interactive process to consider reasonable accommodations which might enable an employee with a disability to enjoy equal employment opportunities.
If all avenues have been exhausted and the employer confirms that the termination is unrelated to the disability, or that the employee does not meet legitimate requirements for the job (such as performance or production standards, with or without reasonable accommodation), or if because of the employee’s disability, he or she poses a direct threat to health or safety in the workplace, then the employer may choose to proceed with termination of the employee under the guidance of an employment law attorney.