Recognizing & Addressing Performance Deficiencies

By Glenn A. Duhl, Esq.

job_performanceDeficient performance is the quintessential reason for disciplining or even terminating an employee. What happens when an employee claims that his or her deficient performance is due to a disability? The answer, which I will unpack below, is that both the employee and the employer must engage in what the Americans with Disabilities Act (ADA) describes as “an interactive process” to determine if the employee can perform the “essential functions of the job” with a “reasonable accommodation.”

Frequently, employees may not take responsibility for their own performance deficiencies. They may even be unable to take responsibility. Take, for example, the Harvard Law grad suffering from anxiety disorders who landed a position at a prestigious law firm, only to be terminated after failing the bar twice. She received testing accommodations at Harvard, but was denied any accommodation on her first bar exam, which she failed, and received only some of her requested accommodations — not her request for unlimited break time — on her second bar exam, which she also failed. The prestigious firm then fired her. She has since passed the bar after receiving all accommodations, including unlimited breaks, but claims she could not find an equivalent job and has an ongoing suit against the board of bar examiners for discrimination under the ADA. While the board was not her employer, the case suggests that some performance deficiencies cannot be accommodated.

A recent decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., illustrates what can and cannot be an accommodation under the ADA. Due to serious back pain, Raymond Severson went on 12-week medical leave under the Family Medical Leave Act (FMLA) from his job with Heartland. He had back surgery on the last day of his leave and requested Heartland extend his leave indefinitely. Heartland denied his request and terminated him. Heartland told Severson he could reapply when his doctor said he could do the job. Three months later his doctor cleared him to return to work, but instead of reapplying, he sued Heartland for failing to provide a reasonable accommodation under the ADA.

The Seventh Circuit first described the difference between the FMLA and the ADA, then determined that Severson’s requested accommodation was not reasonable. “The FMLA protects up to 12 weeks of medical leave, recognizing that employees will sometimes be unable to perform their job duties due to a serious health condition. In contrast, the ADA applies only to those who can do the job.” “Intermittent time off or a short leave of absence — say, a couple of days or even a couple of weeks, may, in appropriate circumstances, be [a reasonable accommodation].” An extended leave of absence, such as Severson requested, “does not give a disabled individual the means to work; it excuses his not working.” Therefore Heartland did not fail to provide a reasonable accommodation.

A request for open-ended leave is not reasonable under the ADA. Needing unlimited break time during an exam in a field that places a premium on efficiency may also be unreasonable. The ADA provides an employee who can, in fact, perform the essential functions of the job, with an opportunity to acquire the means to do so. The onus is on the employee to say, “this is how I can do the job.” If a reasonable accommodation is possible, the employee may become, or continue to be, a valuable asset for the employer; whereas without engaging in the process, she or he could be disciplined or discharged for deficient performance.

Glenn A. Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. Please visit www.zcclawfirm.com.

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.

(image courtesy of mbchamber.mb.ca)