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Unsatisfactory Performance Excused by Disability?

Posted in: Truckstop Business, Americans with Disabilities Act

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/// Guest post by contributor Jerry Leemkuil, Federated Insurance

Unsatisfactory Performance Excused by Disability?

Today Federated Insurance is sharing one of our “HR Questions of the Month” regarding employment-related practices liability issues. 

Question: Is an employee who reports a reading/writing disability covered under a protected class?  Are there suggestions on how to handle if this employee reported this after receiving a written reminder for performance related issues when no prior notice had been provided to HR either verbally or in writing. The employee in this instance has been employed by the company for 8 years.

Response: The federal Americans with Disabilities Act (ADA) generally defines a disability as a physical or mental impairment that substantially limits one or more major life activities. An individual can also be considered to have a disability if he or she has a record of such an impairment or is regarded as having such an impairment by the employer. That said, the ADA does not contain a list of medical conditions that constitute disabilities, rather an individualized assessment must be undertaken (using the foregoing definition) to determine if one exists. This means that some people with learning disabilities may indeed have a disability under the ADA, while some may not. Without additional information, it is difficult to opine whether the subject employee is disabled within the meaning of the Act. We recommend that you review the information published at http://askjan.org/media/LD.html for more information as to whether the employee in question is disabled by the ADA.

Whether the employee is protected by the ADA as having a disability or not, however, the employer is not required to excuse unsatisfactory performance on account of the condition. Indeed the EEOC has expressly stated that "[a]n 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. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard." See question 1 at https://www.eeoc.gov/facts/performance-conduct.html#perf. The EEOC also offers guidance as to the particular issue raised by your inquiry at question 4 at the aforementioned link as follows:

"4. If an employer gives a lower performance rating to an employee and the employee responds by revealing she has a disability that is causing the performance problem, may the employer still give the lower rating? Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played.  Practical Guidance: If an employee states that his/her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level." 

Thus, while the employer would be obligated to explore and, if necessary, provide a reasonable accommodation to the employee if the employee's recently-disclosed learning disability is a disability for ADA purposes (and you are entitled to ask the employee to support the existence of a disability with medical documentation), the accommodation does not have to include lowering performance standards or excusing or failing to discipline performance deficiencies. For more information, see question 6 at the link above as well as the guidance published on reasonable accommodation here.

{Guest Post} Guest post provided by Jerry Leemkuil, Federated Insurance. For more than a century, Federated Insurance Companies has provided peace of mind to business owners through valued insurance protection. Learn more about Federated Insurance.

The opinions and advice given by guest post contributors are not necessarily those of NATSO Inc. The posts should not be considered legal advice. Qualified professionals should be sought regarding advice and questions specific to your circumstances.

This article is intended to provide general information and recommendations regarding risk prevention only. There is no guarantee that this information will result in reduced losses, lower premiums, or lower experience modification factors. The content provided is accurate as of February 2015 and is subject to change. This information may be subject to regulations and restrictions in your state and should not be considered legal advice. Qualified counsel should be sought regarding questions specific to your circumstances and applicable state laws. © 2016 Advisors Law Group, All Rights Reserved

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About the Author

Jerry Leemkuil

Jerry Leemkuil

Jerry Leemkuil is Field Manager in the Association Risk Management Services Department at Federated Insurance. In his current role, Jerry oversees relationships with over 150 recommending associations and numerous prospect associations.  He has provided professional presentations to many of the association partners Federated works with, including numerous “Affordable Care Act” updates.

During Jerry's 23 years with Federated, he has worked exclusively in the marketing and association relationship areas. He has coordinated and developed many of Federated’s association relationships across the country. Prior to being named Field Manager in Association Risk Management Services, Jerry spearheaded the development of the Commercial Health Team. 

Jerry, his wife Lisa, and their two daughters reside in Owatonna, MN.