THE ADA AND THE INCOMPETENT EMPLOYEE: ANOTHER HIDDEN (AND EXPENSIVE) PITFALL FOR EMPLOYERS

Avoiding Lawsuits

Suppose one of your key employees becomes unproductive and mistake prone, and it is really beginning to cost you. You don't know whether the employee is having family problems, has simply become lazy or has a bona fide medical or psychiatric condition. Your business is suffering and you need to fix the problem, which means you have to find out what the cause is, and how long it's going to last. Common sense tells you to be straight up, and simply confront the employee. Is that OK?

It used to be so much simpler. Now, the Americans with Disabilities Act (ADA), coupled with the EEOC's interpretations and the decisions of various courts, have made these everyday business issues incredibly complex, and the upshot has been a wealth of claims against employers. Much of the difficulty lies in the fact that the managers and supervisors who directly interface with the employees are generally the ones who make the decisions on how to respond to these kinds of situations and, more often than not, these managers and supervisors have not been properly trained in the nuances of the ADA.

Here are the basic rules of the game.

The overriding, guiding principal of the ADA in these situations is much easier to state than apply: if, on the basis of real evidence and not just suspicion, you know that the employee is not performing the essential functions of his job, you can ask the employee whether the problem relates to a physical or mental condition (as opposed to laziness or incompetence, for instance). You must strictly limit your questions to issues that relate to the employee's ability to do the job, and nothing more.

Now suppose that the employee tells you that he went to a doctor and was diagnosed with a medical condition that is causing the problem. Consistent with the restrictions noted above, you ask some questions about how this affects the ability of the employee to do the essential functions of his job and how long the condition will last. The employee tells you about his condition - perhaps he has a vision problem, or a hearing problem, or chronic migraines, or is suffering the effects of some medication. He does not know when or if he will get better.

What can you do then? You are dealing with an absolutely key employee, you have to get the job done, and the employee cannot do it. Are you permanently stuck with an employee who cannot perform? Common sense would tell you that whatever benefits you might make available to the employee, you need to replace the employee to stay in business.

Not so fast, says the ADA. Now that you are on notice of a real "disability" (as defined by the ADA), the ADA requires that you immediately determine whether the employee will be able to do his job with a "reasonable accommodation." If he can, and if that "reasonable accommodation" will not cause you an "undue hardship," you must provide it. Perhaps the employee could improve if you bought him specialized computer equipment to overcome a vision or hearing issue. Suppose it costs $1,000. Do you have to do it? $5,000? $10,000? The ADA's answer: for a small company, maybe $1,000 is too much to expect; for a larger company, maybe $10,000 is quite reasonable. There is no hard and fast rule. Maybe you need to give the employee some time off. An hour each day? A full day? A week? A month? Would that cause an "undue hardship"? The only answer presently available is "it depends" - no answer at all.

Now suppose you don't believe the employee and you demand the right to verify that, in fact, the employee really has a problem. We see lots of cases where, for instance, a notoriously derelict employee repeatedly shows up late. Before he is disciplined, he claims that he is beset by a physical problem that precludes his timely appearance, and he needs a "reasonable accommodation" under the ADA - the right to come to work an hour later. You can, subject to the above restrictions (and, we suggest, under the guidance of counsel) put the employee to his proof, but you better do it right.

But suppose the employee refuses to provide documentation or to submit to an examination - he disregards a direct order. Again, common sense would tell you that this, in itself, would justify termination.

Not according to the ADA. Although this is not totally fleshed out, the EEOC's position is that once your employee makes known his claimed need for a reasonable accommodation that would permit him to sleep in, you cannot discipline the employee for his failure to provide the information you seek. You can only discipline the employee based on the employee's tardiness; in other words, if, based upon your policies and practices, the tardiness would only result in a day's suspension, that's all you can do. If, instead, you terminate the employee for his failure to provide the information you asked for, you will most likely face a back pay damage award, and maybe much more.

The ADA has evolved a variety of tentacles that violate common sense, and that can entrap unwary employers at innumerable turns. Even worse, other statutes, like the Family Medical and Leave Act (FMLA) and workers compensation laws, often overlap, contradict, and supplement the ADA to the point that it is difficult for even the most sophisticated student of this area of law to disentangle the resulting mess. We will periodically touch on these pitfalls in future issues of Avoiding Liabilities. As a safeguard, many of our clients set up a "hot line" relationship with us. Managers or supervisors are either directed to contact us for advice before actions are taken, and/or we train them in advance to recognize the "red flags" so that they know enough to call us for five minutes of preventive advice. This ounce of legal prevention has been worth many, many pounds of litigation cure.

SUMMARY - The ADA substantially restricts an employer's right to make inquiries regarding the physical or emotional reasons for a non-performing employee's conduct. When you are permitted to ask, depending on what you find out, you may then be required to offer "reasonable accommodations" to the employee. In many contexts, much of this violates common sense and, consequently, ADA lawsuits are becoming more commonplace, and more dangerous.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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