While the Americans with Disabilities Act (ADA) provides protection for employees with disabilities and aims to prevent discrimination the workplace, there are limits to ADA protections that employees should know about. First, the ADA does not limit an employer’s right to evaluate an employee’s conduct or performance, as long as the conduct rule in question is job-related and consistent with a business necessity. More importantly, the ADA may not provide protection for violating workplace conduct rules, even if the conduct is a result of a disability. Although requesting a reasonable accommodation may remedy disability-related conduct issues, there are circumstances where disability-related conduct violations may lead to termination.
The “job-related and consistent with a business necessity” requirement will usually always be satisfied by the most common workplace rules of conduct, such as workplace violence or threats of violence, stealing, destruction of property, insubordination, or disrespect toward management, clients, and customers. Employers also have a right to regulate behavior between coworkers, including prohibitions on disrespectful conduct like physical or verbal aggression, profanity, obscenities, or offensive communications. Workplace rules against visiting inappropriate websites (porn, for example) or frequent computer usage unrelated to work will also almost always qualify. Lastly, an employer has the right to regulate behavior related to safety and operations, including prohibitions on the use of alcohol and illegal drugs in the workplace.
Where an employee’s conduct is disruptive but not necessarily clearly defined as prohibited by boilerplate workplace conduct rules, the employer’s right to discipline or fire the employee for conduct violation will depend on a number of factors, including whether the employee’s disability has manifestations or symptoms that affect the employee’s conduct, how frequently the issue is arising, the nature of the job, and the workplace environment.
In employment cases, timing can have a huge impact on the outcome. If there is a possibility that an employee’s disability may lead to conduct issues, the best approach may be to talk with the employer about a reasonable accommodation before any conduct issues arise. Employees should not expect employers to know about their disability or initiate a conversation about reasonable accommodations, and in fact an employer who does so may be in violation of the ADA. Waiting until after the conduct violations have already occurred to raise the disability and/or accommodation request may not undo a write-up or unwind a termination. However, if the punishment for the conduct violation falls short of termination, the employer cannot refuse to engage with the employee about a requested accommodation as punishment for the violation. Likewise, if an employer provides a reasonable accommodation and the employee is still unable to meet the required standard of conduct, the employee may still be terminated, though the employer should allow sufficient time after the accommodation is in place to fairly evaluate the employee’s conduct.
If you have questions about conduct issues at work related to disability symptoms, always seek the help of an experienced attorney, like a trusted employment or work discrimination lawyer in Atlanta, GA.
Thanks to our friends and contributors from Barrett & Farahany LLP for their insight into ADA protection.