Dealing With Performance Issues for Disabled Employees

August 10, 2016

Topics: Disability and Leave Obligations

Sometimes I see employers go outside the bounds of their obligations when they have disabled employees and provide what is generally unwanted, and unwarranted, medical advice.  In our practice we have too often seen HR managers and small business owners unfortunately, and improperly, advise employees as to what they should do for this condition or that condition, or focus on other issues regarding their employees’ medical conditions that are outside the employer’s sphere.  Even when these actions stem from a compassionate desire to help a disabled employee, this is a really bad idea.  What is HR’s concern?  Getting employees to (1) come to work and (2) do their jobs.

Of course you want to create a working environment that is collegial, where employees feel respected, and where a good work ethic is fostered.  However, that does not include trying to become your employees’ health care provider.

I recently saw a seminar advertised where the speakers would be an HR Consultant and a medical professional who would help attendees spot their employees’ medical conditions.  Hold the presses!  Since when are employers supposed to identify their employees’ health concerns?

To begin with, if an employee is performing his or her job satisfactorily, an employer cannot (and should not) take any action to even imply that the employee may have a medical condition.  Doing so would be a violation of various disability discrimination laws.  Indeed, if an employee is performing his or her job satisfactorily it means the employee is doing what he or she is supposed to do:  (1) come to work and (2) do their job.  The employer should sit back proudly and thank the employee for a job well done.

If, however, an employee is not performing satisfactorily, then it is time for the employer to step in.  Any conversation, however, needs to be performance related.  The starting point of a conversation with an employee (disabled or not) should never be a suspicion on the employer’s part that the employee has a disability or medical condition.  Rather, the employer needs to focus on the employee’s actions, performance, behavior, attitude etc. that are not satisfactory, and discuss ways for improvement.

Yes, it could be that the employee has a disability that is limiting his or her ability to perform the essential functions of the job.  In that case, the employer may need to consider whether there are any reasonable accommodations that could be made to alleviate those limitations and allow the employee to perform those functions.  Even then, however, the focus is on performance and ability.  How is the employee going to get the job done and meet the employer’s expectations, notwithstanding the disability’s limitations?

If it appears that the employer needs information regarding how the employee’s medical condition or disability is limiting the employee’s ability to perform the job (or whether it is a medical condition that is prohibiting the stellar performance you expect), you can speak with the employee about the situation and even request information from the employee’s health care provider.  But it is not the employer’s place to try to identify medical conditions the employee may have.  Indeed—the specific condition that is imposing limitations is not always relevant.  All the employer needs to know is that there are job limitations and they have a medical source.

The same job restrictions can be imposed by a doctor for different reasons.  For example, the employee may have a medical condition for which the doctor imposes a lifting restriction.  All the employer generally needs to know is:  (a) there is a medical condition, (b) it limits the employee’s ability to lift, and (c) how long the restriction needs to be in place.  The employer may not need to know that the employee has a bad back; or a hernia; or is pregnant; or had an appendectomy; or twisted their shoulder; or has a heart condition; or any one of a number other conditions that limit lifting.  Especially under the Americans With Disabilities Act amendments and regulations, employers are not supposed to nit-pick regarding whether the condition is a disability that needs to be accommodated.

Point being, however, is that employers should not be on the look out for their employees’ disabilities or medical conditions.  All employees should be presumed to be able to perform the job for which they were hired—until they demonstrate otherwise.  In those situations, deal with the performance issues . . .  as performance issues.  Of course, employers should provide reasonable accommodations when needed (and HR should be educated as to how to engage in the interactive process to determine whether a reasonable accommodation is possible), but, again, focus on what it is going to take to get the employee to do the job.  Work with your employees so they can live up to your expectations—so they can (1) come to work and (2) do their jobs.