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You’re listening to the Disability Law Lowdown Podcast, Show #20.

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Jacquie Brennan: Hi, this is Jacquie Brennan, your host for the Disability Law Lowdown. Today we’re going to be talking about the Equal Employment Opportunity Commission’s new guidelines on applying performance standards to employees with disabilities under the Americans with Disabilities Act.

Employers typically establish job-related requirements, that is the specific tasks or assignments an employee must perform and methods to evaluate that performance. Evaluation criteria might take into account how well an employee is performing both essential and marginal functions and whether the employee is meeting the basic job requirements. Employers might also enforce conduct standards and we’re going to talk about conduct standards in a future podcast.

Today we’re going to focus on performance standards. The EEOC has put out this great guidance on this and they do it mainly in a question answer format, so that’s what I’m gong to use here. The first one is:

Q: May an employer apply the same quantitative and qualitative requirements for performance of essential functions to an employee with a disability that it applies to employees without disabilities?

A: The answer to that is yes. An employee with a disability must meet the same production standards, whether that’s quantitative or qualitative, as an employee without a disability in the same job. Lowering or changing a production standard because an employee cannot meet it because of a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee to meet the standard. So, the reasonable accommodation would be something that would allow the employee to actually meet the performance standard as opposed to simply lowing the performance standard which is clearly not required.

So, an example is: a federal agency requires all of its investigators to complete thirty investigations a year in addition to other responsibilities. Jody’s disability is worsening causing her increasing difficulty in completing thirty investigations a year while she also conducts training and writes articles for a newsletter. Jody tells her supervisor about her disability and requests that she be allowed to eliminate the marginal functions of her job just so she can focus on performing the investigations so she can meet the performance standard of thirty investigations per year. After determining that conducting training and writing articles are really marginal functions for Jody and that no undue hardship exists, the agency reassigns Jody’s marginal functions as a reasonable accommodation to her.

In another example, Robert is a sales associate for a pharmaceutical company. His territory covers a three state region and he has to travel to each state three times each year. Due to staff cutbacks, the company is increasing the number of states for each sales person from three to five. Robert explains to his manager that, due to his disability, he cannot handle the extra two states and the increased traveling and he asks that he be allowed to have responsibility only for the original three states that he’s always had. The company may refuse this request for an accommodation because it actually conflicts with the new production standards, but the company should explore with Robert whether there is any reasonable accommodation that could enable him to service the five states and, if not, whether reassignment to a different position might be possible.

Another example, a computer programmer with a known disability has missed deadlines for projects, necessitating other employees to have to finish his work. Also, the employee has not kept abreast of changes in the database package causing him to misinterpret as system problems changes that he really should have known about. The employee is placed on a Performance Improvement Plan, but his performance doesn’t improve and he’s terminated. At no time does the employee request a reasonable accommodation, like he didn’t tell the employer that he needs an adjustment or a change because of his medical condition. The termination in that case would be justified as long as the employer holds the employee to the same performance standards as other programmers.

Q: May an employer use the same evaluation criteria for employees with disabilities as for employees without disabilities?

A: Yes. An employer should evaluate the job performance of an employee with a disability the same way it evaluates any other employee’s performance. As practical guidance, the EEOC says an accurate assessment of an employee’s performance may, in some cases, alert the employee that his disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve performance which can benefit both the employee and the employer.

An example, last year Nicole received an above average review in her annual performance evaluation. During the year, Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodations. The quantity and the quality of Nicole’s work were not as high and she received just an average rating. Her supervisor does not have to raise Nicole’s rating even though the decline in her performance was related to her disability.

Q: May a supervisor require an employee with a disability perform a job in the same manner as an employee without a disability?

A: Well, not necessarily. Many times an essential function can be performed in different ways, one of which is with a reasonable accommodation. So an employee who must use an alternative method of performance because of a disability must be evaluated accordingly. But an employer is not required to allow the use of an alternate method that would impose an undue hardship.

An example, one of Rhoda’s essential functions is providing training. Because she’s deaf and, as a result, has difficulty speaking, Rhoda uses a sign language interpreter to voice for her. Generally, Rhoda’s supervisor evaluates his employees on the use of their voices, whether they speak with a monotone or use their voices to show interest and enthusiasm. Rhoda’s presentation cannot be measured in this way. However, there are alternative ways to measure how she conveys her message including her body language, her facial expression and the words that she uses.

Another example, Daniel works as a millwright and an essential function of his job is repairing and maintaining equipment. Most of the equipment is accessible only by climbing ladders and steps. Due to a recent disability, Daniel can no longer climb and he must work at ground level only. The location of the equipment does not allow alternative means to lift Daniel. With no reasonable accommodation possible, Daniel can’t really repair the equipment which is an essential function of his job. He would not be considered qualified to remain in that position and the employer should explore whether it could reassign him as a reasonable accommodation.

Q: If an employer gives a low performance rating to an employee with a disability and the employee responds by revealing that she has a disability that’s causing the performance problem, may the employer still give the lower rating?

A: Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played. As practical guidance, the EEOC says that if an employee states that her disability is the cause of performance problems, the employer can 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, and the obligation generally rests with the employee to ask, the employer may ask whether there’s an accommodation that may help raise the employee’s performance level.

Q: Must an employee with a disability ask for a reasonable accommodation at a certain time?

A: No. The ADA does not compel employees to ask for accommodations at a certain time. Employees may ask for reasonable accommodation before or after being told of performance problems. Sometimes an employee may not know or may not be willing to acknowledge that there’s a problem requiring accommodation until the employer actually points that out. As practical guidance from the EEOC, they say ideally employees will ask for reasonable accommodations before performance problems arise or at least before they become too serious. Although the ADA does not require employees to ask for accommodation at a specific time, the timing for a request for reasonable accommodation is important because an employer does not have to rescind discipline, including termination, or an evaluation warranted by poor performance.

As an example, Nasar, an employee at a non-profit organization, recognizes soon after he begins working that he’s having difficulty following conversations at meetings because of his deteriorating hearing. Nasar’s hearing aid helps him when talking directly to one person, but not when he’s in a large room with a whole lot of people participating in a discussion. Nasar thinks he could follow the group discussion if the employer provided a portable assistive listening device. He tells his supervisor that a simple assistive listening system would include an FM transmitter and microphone that could be placed at the center of a conference table and an FM receiver and headset that he would wear. The system would amplify speakers’ voices over the headset without affecting the way other meeting participants would hear the conversation. The employer provides the reasonable accommodation and Nasar now performs all of his job duties successfully.

Another example, a county employee does not disclose her chronic fatigue syndrome, even when she begins to have performance problems that she believes are disability related. Her supervisor counsels her about the performance problems, but they persist. Her supervisor warns her that if her work doesn’t show improvement within the next month she’ll have a written warning. At this point the employee discloses her disability and asks for reasonable accommodation. The supervisor should discuss the request and how the proposed accommodation would improve the employee’s performance. The supervisor may ask questions or seek medical documentation that the employee even has a disability. The supervisor does not need to rescind his oral warning or his requirement that the employee’s performance must improve, however, delaying the one month period to evaluate the employee’s performance pending a decision on her request for reasonable accommodation will enable the employer to assess the employee’s performance accurately.

Another example, an employee with a small advertising firm has a learning disability. Because the employee had a bad experience at a prior job when he requested accommodations, he decides not to disclose his disability during the application process or once he begins working. Performance problems soon arise and the employee’s supervisor brings them to the employee’s attention. He tries to solve the problems on his own, but can’t. The firm follows its policy on counseling and disciplining employees who are failing to meet the minimum requirements, but these efforts are unsuccessful. When the supervisor meets with the employee to terminate his employment, the employee asks for a reasonable accommodation. The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify those problems. This employee waited too long to request reasonable accommodations.

Q: What should an employer do if an employee requests an accommodation for the first time in response to counseling or a low performance rating?

A: As practical guidance, the EEOC says employers find the interactive process helpful in clarifying what accommodation an employee is seeking and how it would help correct a performance problem. The topics for discussion will vary depending on what information an employer requires to respond to a request for reasonable accommodation, but failing to raise questions may leave an employer at a disadvantage in making an informed decision. Furthermore, an employer might learn that alternative accommodation may be effective in meeting the employee’s needs.

When an employee requests reasonable accommodations in response to the employer’s discussion or evaluation of the person’s performance, the employer may proceed with the evaluation or discussion, but also should begin the interactive reasonable accommodation process by discussing with the employee how the disability may be affecting performance and what accommodation the employee believes may improve it. Employers cannot refuse to discuss the request or fail to provide a reasonable accommodation as punishment for the performance problem.

An example, Odessa does not disclose her learning disability even when she begins having performance problems she believes are disability related. Her supervisor notices the performance problems and counsels Odessa about them. At this point Odessa reveals her disability and requests reasonable accommodation. The supervisor denies the request immediately explaining, “you shouldn’t have waited until the problems developed to tell me about your disability.” Odessa’s delay in requesting accommodation does not justify the employer’s refusal to provide one. If a reasonable accommodation will help improve the employee’s performance, without posing an undue hardship or course, the accommodation must be provided.

Another example, a federal employee is put on a sixty day Performance Improvement Plan. In response, the employee requests a reasonable accommodation. The supervisor postpones the start of the Performance Improvement Plan and immediately discusses the request with the employee, enlisting the agency’s Disability Program Manager in the interactive process. The supervisor and the Disability Program Manager determine that a reasonable accommodation might help address the employee’s performance problems. The supervisor arranges for the reasonable accommodation and the sixty day Performance Improvement Plan commences.

The employer did not have to cancel the Performance Improvement Plan because reasonable accommodation never excuses poor performance or its consequences. However, the fact the employee did not ask for an accommodation until being placed on the Performance Improvement Plan does not relieve the agency from its obligation to provide reasonable accommodation if the employee has a disability and an accommodation will help improve her performance. The temporary postponement of the Performance Improvement Plan to process the request for reasonable accommodation ensures that if the employee needs that reasonable accommodation the employee will have an equal opportunity to improve her performance.

If the employer determines the employee is not entitled to a reasonable accommodation, like for instance if the employee doesn’t actually have a disability, then the employee should be told about that and then the Performance Improvement Plan should begin.

Q: May an employer withdraw a telework arrangement or a modified schedule provided as a reasonable accommodation because the employee has been given an unsatisfactory performance rating?

A: No. An employer may not withdraw a reasonable accommodation as punishment for the unsatisfactory performance rating. Simply withdrawing the telework arrangement or the modified schedule is no different than discontinuing the employee’s use of a sign language interpreter or assistive technology as reasonable accommodations. Nor should an employer assume that an unsatisfactory rating means that the reasonable accommodation is not working. The employer can proceed with the unsatisfactory rating but may also wish to uncover the cause of the performance problem to help evaluate the effectiveness of the reasonable accommodation. If the reasonable accommodation is not assisting the employee in improving his performance as intended, the employer and employee may need to explore whether any changes would make the accommodation effective, whether an additional accommodation is needed or whether the original accommodation should be withdrawn and another one substituted.

I hope you’ve learned a little something during this podcast on performance standards for employees with disabilities under the ADA and that you’ll join us again for our next Disability Law Lowdown podcast. Thanks for tuning in.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

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The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.