Under the Americans with Disabilities Act (ADA), an employee must be able to do the essential functions of a job, either with, or without, a reasonable accommodation. An essential function of a job is one that, if removed, would fundamentally change the job. A reasonable accommodation is a change in the workplace or how things are done that would allow the employee to perform essential functions of the job, but it’s important to note that an employer is generally not required to provide any accommodation that creates significant difficulty or expense for the employer, including removing an essential function of a job.
The employee must also be able to meet the qualifications of a job, as long as the standards for qualification are job-related and consistent with a business necessity, i.e, they are legitimate measures of an employee’s ability to perform an essential function of the job. Qualification standards may include training, licenses or certificates, health or safety requirements, the ability to work with others or work under pressure, or even certain physical or mental abilities, such as vision, hearing, running, or climbing.
An employer can also apply the same performance requirements to disabled employees as to all other employees, but the employer may be able to provide a disabled employee a reasonable accommodation that would allow the employee to meet the performance standards. For example, an employer might be able to provide an interpreter or an assistive device, or might be able to reassign marginal tasks to allow the employee to focus only on essential activities. On the other hand, a request for accommodation that would require lowering production or performance standards would not usually be considered a “reasonable” accommodation and the employer could usually refuse such a request.
Timing in employment cases is almost always significant. Putting an employer on notice of the need for an accommodation before any performance issues arise is the best possible set of circumstances in which to disclose disability or a need for assistance from the employer. If the employer has already taken some disciplinary action against an employee before an accommodation request is made, the employer is not obligated to excuse prior bad performance, cancel a performance plan (PIP), or unwind a termination. However, if an employee has been granted a modified schedule or is being allowed to work from home as a reasonable accommodation for a disability, the employer should not withdraw such accommodations as a penalty for non-performance (this would be equivalent to an employer taking away an interpreter or assistive device!). If the employer has taken numerous disciplinary actions against the employee or the employee waits until his or her termination to disclose disability or request an accommodation, the employer can refuse the request for accommodation and proceed with termination.
If you have questions or concerns about performance at work as it relates to a disability, please consult with an experienced attorney, like an employment or discrimination lawyer Atlanta, GA relies on.
Thanks to our friends and contributors from Barrett & Farahany LLP for their insight into ADA and performance.