Summary
If you think an employee's poor work might be caused by a disability, the law says you must be very careful. First, you must focus on the actual performance problems and write them down. If the employee tells you they need help because of a medical condition, you must start an open talk to find a helpful change. If their work still doesn't improve even with the adjustment, you can then proceed with normal steps, as long as you've followed the rules correctly.
What if I Think a Disability is Causing a Performance Issue? also appears on our Substack Newsletter, Making Work Accessible, as part of our Tough Topic Thursdays series.
Tough Topic: What if I Think a Disability is Causing a Performance Issue?
When an employee’s performance slips, the first reaction is often to address the performance itself. But what if you suspect the underlying cause is a disability?
Under the Americans with Disabilities Act (ADA), employers must navigate this situation with a specific and structured approach to ensure compliance, fairness, and support for the employee.
A Guide for Employers
Focus on Performance, Not on the Disability
The most crucial initial step is to separate the performance issue from any perceived disability. The ADA requires that an employer addresses poor performance by documenting the objective, job-related, non-discriminatory reasons for the concern.
Start by clearly documenting the specific deficiencies. What job function is not being performed satisfactorily? When did the performance issue begin? How does this violate established, consistently applied performance standards?
Treat the issue as a standard performance problem. Begin with coaching, warnings, or a Performance Improvement Plan (PIP) as you would for any other employee.
Identifying and Implementing Reasonable Accommodation
The dynamic shifts when the employee requests an accommodation or volunteers information about a disability. If the employee informs you that a medical condition (which may be an ADA-defined disability) is contributing to the performance issue, you must immediately stop the disciplinary process and engage in the Interactive Process instead.
The Interactive Process is a flexible, informal discussion between the employer and the employee with the goal of identifying limitations resulting from the disability and exploring potential reasonable accommodations.
A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified employee with a disability to perform essential job functions.
An employer is not required to provide an accommodation if it would impose an undue hardship: meaning significant difficulty or expense. However, this is a high legal standard, and it must be thoroughly documented before denying an accommodation on this basis.
Post-Accommodation Assessment
After implementing the accommodation, the employee’s performance must be re-evaluated. The employee is now expected to meet the same essential job functions and performance standards as any non-disabled employee. The accommodation simply enables them to do so.
If the employee’s performance does not improve after a reasonable accommodation has been provided, then employers may proceed with the same disciplinary steps that they would use for any other employee failing to meet performance standards. The termination should be framed as being due to failure to perform essential job functions, not the disability itself.
What NOT to Do
- Assume or Ask about a Disability: This violates the ADA’s restrictions on disability-related inquiries.
- Ignore an Accommodation Request: Failure to engage in the Interactive Process is an ADA violation.
- Offer an Accommodation Not Requested: Implementing accommodations before interacting with the employee through the Interactive Process can be an ADA violation as well.
- Immediately Terminate: If you have reason to suspect a disability, skipping the interactive process can lead to a successful wrongful termination or discrimination claim.
By maintaining a consistent focus on job-related performance and following the Interactive Process when triggered, employers can legally and ethically manage performance issues while supporting employees with disabilities.
Resources for Employers and Employees
- EEOC: Applying Performance and Conduct Standards to Employees with Disabilities: https://www.eeoc.gov/laws/guidance/applying-performance-and-conduct-standards-employees-disabilities
- JAN: Performance Management and Employees with Disabilities: https://askjan.org/articles/Performance-Management-and-Employees-with-Disabilities.cfm
- JAN: Performance and Production Standards: https://askjan.org/topics/Performance.cfm
- DOL: Employers and the ADA: Myths and Facts: https://www.dol.gov/agencies/odep/ada/MythsandFacts
In Summary
If you think an employee's poor work might be caused by a disability, the law says you must be very careful. First, you must focus on the actual performance problems and write them down. If the employee tells you they need help because of a medical condition, you must start an open talk to find a helpful change. If their work still doesn't improve even with the adjustment, you can then proceed with normal steps, as long as you've followed the rules correctly.
Google