ADA: Frequently Asked Questions (3)

Q22: May a city withdraw telework or a modified schedule that was provided as a reasonable accommodation because the employee receives an unsatisfactory performance rating?
A: Not simply as punishment for an unsatisfactory performance rating. A city may not withdraw a reasonable accommodation merely because an employee receives a poor rating or is having performance problems.

The city may issue an unsatisfactory performance rating when warranted. The ADA does not require a city to lower legitimate performance, production, quality, conduct, attendance, or safety standards. However, before withdrawing telework, a modified schedule, or another accommodation, the city should determine whether the accommodation remains effective and whether a change is needed.

An unsatisfactory rating does not automatically mean that the accommodation has failed or is no longer reasonable. The performance issue may be unrelated to the disability or accommodation. It also may indicate that:

• The accommodation is not effectively addressing the employee’s work-related limitation.
• An additional accommodation may be needed.
• A different accommodation may be more effective.
• The employee needs clarification, training, coaching, or performance feedback.
• The employee is not meeting a legitimate performance standard despite effective accommodation.

The city should discuss the issue with the employee and engage in the interactive process when appropriate. The city may modify or replace an existing accommodation if another effective accommodation is available. It may withdraw an accommodation if it is no longer needed, no longer effective, creates undue hardship, or is based on materially changed circumstances. The city should document the reasons and should not use the accommodation change as discipline or retaliation.

Q23: If an employee’s disability causes a violation of a conduct rule, may the city discipline the employee?
A: Generally, yes. A city may enforce job-related conduct rules that are consistently applied to all employees, including employees whose misconduct is related to a disability.

The ADA does not excuse an employee from the consequences of violating a legitimate conduct standard merely because the violation was caused by a disability. The city may enforce rules prohibiting violence, threats, harassment, theft, destruction of property, insubordination, misuse of city equipment, inappropriate electronic communications, unlawful drug use at work, drinking at work, and violations of legitimate safety or operational rules.

However, before acting, the city should ensure that the rule is:

• Job-related.
• Consistent with business necessity.
• Clearly communicated.
• Consistently applied to similarly situated employees.
• Applied based on specific conduct, not stereotypes or assumptions about a medical condition.

The city should also distinguish serious misconduct from behavior that is merely unusual, minor, or caused by a disability but does not interfere with job performance, safety, service delivery, customer service, or coworkers’ ability to do their jobs. Coworker discomfort, generalized fears, or dislike of a disability-related behavior are not enough to justify discipline or adverse action.

For example, a city may enforce prohibitions against threats of violence, physical aggression, harassment, or serious disruption of public service. But it should not discipline an employee simply because the employee has a harmless disability-related mannerism, speech pattern, tic, or behavior that does not affect essential job functions, public service, safety, or coworkers’ work.

A city may also have an obligation to consider whether reasonable accommodation would help the employee comply with conduct expectations in the future. Accommodation may include clear written instructions, a modified supervisory approach, schedule changes, breaks, a quieter work environment, leave for treatment, time to attend medical appointments, coaching, a change in how feedback is provided, or another effective adjustment.

Q24: How should a city address disruptive behavior that may be related to a disability?
A: Focus on observable behavior and its actual work-related impact. Do not diagnose the employee, speculate about a medical condition, or rely on coworker discomfort alone.

The city should ask:

• What specific conduct occurred?
• What policy, performance standard, safety rule, or service requirement is affected?
• Is the conduct interfering with public service, safety, customer interactions, or coworkers’ ability to perform their jobs?
• Is the conduct serious, repeated, threatening, harassing, or disruptive?
• Is the conduct being addressed consistently with how the city treats comparable conduct by other employees?
• Has the employee disclosed a medical condition, requested accommodation, or provided restrictions?
• Could a reasonable accommodation help prevent future conduct problems?

For example, loud, frequent outbursts that prevent coworkers from performing critical duties or interfere with public service may justify corrective action. In contrast, a harmless mannerism or quiet self-talk that does not interfere with work, safety, customer service, or other employees’ ability to work ordinarily should not be the basis for discipline.

When the behavior involves threats, violence, serious safety concerns, or immediate disruption of operations, the city may take prompt action necessary to protect employees and the public. HR should then evaluate whether an accommodation process is also required.

Q25: What should the city do if an employee first mentions a disability or requests accommodation during counseling or discipline for unacceptable conduct?
A: The city may generally proceed with discipline for misconduct that occurred before the employee disclosed the disability or requested accommodation, provided the discipline is consistent with how the city treats similar misconduct by other employees.

The ADA does not ordinarily require a city to rescind discipline that was warranted by past misconduct merely because the employee later explains that the misconduct was disability-related. If termination is the appropriate and consistently applied consequence for the misconduct, the ADA generally does not require the city to withdraw the termination or provide accommodation after the fact.

However, if the city imposes discipline short of termination and the employee discloses a disability or requests accommodation, the city should refer the matter to HR and begin the interactive process. The city may ask for reasonable medical documentation if the disability, functional limitation, or need for accommodation is not obvious. The city should determine whether an accommodation could help the employee meet conduct expectations in the future. Examples may include:

• Clearer written instructions or expectations.
• More frequent supervisory check-ins.
• Modified methods for providing feedback.
• A quieter work area.
• Permission to take a brief break before behavior escalates.
• Schedule adjustments.
• Leave for treatment or medication adjustment.
• Time off for medical appointments.
• Another effective accommodation that does not create undue hardship.

The city should not refuse to discuss an accommodation request simply because the employee has a conduct problem. Refusing an effective accommodation that would help prevent future violations may create ADA risk, even though discipline for prior misconduct remains appropriate.

Example
An employee receives a written warning for yelling at a supervisor during a meeting. During the warning meeting, the employee explains that a mental-health condition has recently worsened and requests a short break or the ability to step out of a meeting when symptoms escalate. The city may retain the written warning if it is consistent with its treatment of similar misconduct. However, HR should evaluate whether a reasonable accommodation—such as scheduled breaks, a modified feedback process, a quieter meeting setting, or leave for treatment—would help the employee comply with conduct standards going forward.

Q26: May a city require a pregnant employee to sign a waiver releasing the city from liability for potential risks to the fetus?
A: No. A city should not require a pregnant employee to sign a waiver as a condition of continuing to work in a position that may involve potential risks to pregnancy or fetal health.

A city also may not require a pregnant employee to take leave, transfer her involuntarily, restrict her duties, or exclude her from work based on paternalistic concerns about possible harm to the fetus. Sex-specific fetal-protection policies are generally unlawful under Title VII and the Pregnancy Discrimination Act. International Union, UAW v. Johnson Controls, Inc. held that an employer could not exclude women from jobs involving lead exposure based on fetal-health concerns.

The city should manage workplace hazards through lawful, gender-neutral safety practices, including:

• Hazard assessments.
• Appropriate safety training.
• Engineering and administrative controls.
• Personal protective equipment.
• Exposure monitoring.
• Employee education about known risks.
• Compliance with OSHA and other workplace-safety requirements.

If a pregnant employee identifies a pregnancy-related limitation or requests a work-related change, the city should engage in the PWFA interactive process. Under the PWFA, covered cities generally must provide reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions unless doing so would cause undue hardship. Possible accommodations may include modified duties, a temporary change in schedule, reduced travel, light duty, temporary reassignment, telework where feasible, temporary suspension of an essential function when the statutory requirements are met, or leave.

The city should not ask the employee to waive legal rights or assume legal responsibility for workplace hazards. Instead, it should document the safety assessment, provide applicable safety information, address risks through neutral workplace measures, and evaluate any requested accommodation individually.

Key authority

• ADA Title I, 42 U.S.C. §§ 12111–12117.
• EEOC, Applying Performance and Conduct Standards to Employees with Disabilities.
• Pregnant Workers Fairness Act, 42 U.S.C. §§ 2000gg–2000gg-6; 29 C.F.R. Part 1636.
• Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
• International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).