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So What’s The Problem?
In the pre-ADA world, if an employee was not doing his or her job, an employer could terminate, discipline, demote or otherwise deal with the employee as the employer thought best. In the post-ADA world, however, if the employee’s poor performance is caused by a “disability,” the employer no longer has those freedoms. Instead, as soon as the employer is on notice of the problem and the desire of the employee to get some help, the employer must engage in an interactive dialogue with the employee to determine if the employee can be enabled to perform the “essential functions” of his or her job through a “reasonable accommodation.” If there is a reasonable accommodation that can do the trick, the employer must make that accommodation available to the employee.
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But what happens when there is a disconnect between your observations of an employee’s poor job performance, and your recognition that the poor job performance results from an ADA-protected disability? Suppose the “that’s a potential disability” bell simply does not go off in your head?
For instance, you hire an employee who falls asleep on the job. It turns out the employee is on a medication that causes temporary drowsiness, and all he needs is an extra thirty minute break to get through the day. You’re angry, it never occurs to you that there might be an explanation, and you fire him on the spot. Or you have an employee who takes forever to provide the reports you need. It turns out that he has a vision problem, and would be a top performer if provided with a special computer monitor. You’ve got deadlines to meet, you’ve got no time to deal with employees who are holding you back, and he gets passed over for promotion and salary increases.
Can you get hammered under the ADA for not recognizing that what seemed like incompetence was really the product of a “disability”? You better believe you can... big time.
Which takes us back to bipolar disorder…
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