EMPLOYEE CONDUCT AND THE AMERICANS WITH DISABILITIES ACT
by Don Phin
Most employees with disabilities can maintain acceptable conduct in the workplace. However, on occasion, some employees with disabilities might exhibit unacceptable conduct at work, leaving employers with concerns about discipline, accommodations, and the Americans With Disabilities Act (ADA).
Here are some basic guidelines that can help resolve these workplace issues quickly.
First, create a workplace policy with particular reference to conduct. Provide clear explanations of expected behavior and prohibited behavior. Some specific behaviors to address might include: destruction of property, using profanity at work, insubordination, or leaving one’s work area. Avoid vague statements such as “employees must act professionally” – it might be difficult to determine whether an employee’s behavior complies with such a statement. Precise wording of your policy can help ensure that employees understand the policy. Provide your policy to employees and provide training and periodic reviews to ensure compliance with your policy.
Next, train managers and supervisors to apply your policy in a consistent and reliable manner to all employees. Applying a policy often means “counseling” employees on conduct issues, using “performance plans” or disciplining employees for conduct violations. The ADA does not require employers to withhold or rescind disciplinary actions from employees with disabilities, nor to lower conduct standard. Furthermore, the ADA does not prevent employers from maintaining safe workplaces (free from violence or threats of violence). This means that managers and supervisors must to apply your policy equally to all employees.
Then, encourage employees with disabilities to request job accommodations to ensure compliance with your conduct policy. Job accommodations can help minimize the likelihood of employees with disabilities violating your conduct policy, such as attendance rules or computer use guidelines.
Examples of job accommodations that help employees with disabilities comply with conduct policies include:
• A sales manager with anxiety is required to participate in staff meetings by sharing one thought or idea with the group. Due to her disability, she has difficulty speaking in front of groups. The employer allows her to submit her idea or thought via e-mail soon after the staff meeting.
• Due to chronic pain, a retail employee experiences irritability during long work shifts when medications wear off. Thus, it becomes difficult to maintain satisfactory customer service. As a job accommodation, the employer shortened the employee’s work shift, which helped manage pain, reduced irritability, and improved the employee’s customer service.
• A claims processor with ADHD disrupted teammates frequently with impulsive communication and socialization. To help control his behavior, the employer provided a job coach to teach strategies for managing impulsivity and to reinforce appropriate workplace conduct.
• An employee with depression enjoyed reading inspirational phrases on various Web sites to help manage her mood at work. However, using office computers to surf the internet violated company policy. The employer suggested bringing inspirational books to work, and allowing her to read short portions throughout the day.
Finally, if job accommodations don’t prevent conduct violations, or if employment separation is imminent due to the severity of the conduct violation, proceed with termination. Be prepared to show that the conduct standard was job-related and consistent with business necessity. According to the EEOC’s Guidance on ADA and Psychiatric Impairments http://www.eeoc.gov/policy/docs/psych.html, some conduct standards might not be job-related for a specific position; if not, imposing discipline or termination could violate the ADA.