The Americans with Disabilities Act protects individuals with disabilities from adverse employment action. The recent amendments to the ADA expanded the scope of disability, making it more likely that people can and will be considered disabled for the purposes of the Act. An employee considered to be disabled under the Act may be entitled to a reasonable accommodation. At times, the accommodation will be a direct conflict of your company’s written policies.
For instance, your attendance policy requires employees to call in at least 30 minutes prior to their start-time if they are sick. Violation of the policy may result in disciplinary action. However, a disabled employee may periodically need to be late due to the disability but not know 30 minutes in advance of their start-time. You accommodate their disability by allowing them to call in as soon as practicable without disciplinary action. That seems pretty simple and harmless.
What about the employee with Tourette’s Syndrome or bipolar disorder which may cause the employee to lash out with obscenities, derogatory remarks or threats of violence during an episode? The conduct would be considered disability-caused conduct, but what is an employer’s duty to accommodate such conduct?
While there is no clear line (did you actually expect one in employment law?) and each case must be handled on a case-by-case basis consistent with the facts and symptoms of the employee’s disability (of course) a recent California case held that threats of violence made by an employee during a manic episode were not protected disability-caused conduct and the employer was justified in terminating the employee for her conduct despite being caused by her disability. The court stated that “there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers”. Referencing the EEOC Enforcement Guidance manual, the court further stated that “nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.” The termination was based on a legitimate non-discriminatory reason despite being disability-caused conduct.
As with all high-risk terminations it’s important to contact your attorney to discuss all issues prior to terminating or disciplining.