The EEOC today released a "comprehensive question-and-answer guide" (but not regulations) addressing how the Americans with Disabilities Act (ADA) should be applied to a wide variety of performance and conduct issues. You can download the FAQs at their website here.
In a press release accompanying the document, the EEOC noted that it released the guide in response to questions from employers and employees. According to the EEOC:
The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.
The guide reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities. Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.
What’s notable about this particular Q&A is that the EEOC also offers a "practical guidance" section regarding each topic. Most of it is common sense (or should be) but it is helpful for employers to actually here it from a government agency as well. For example, among the suggestions:
- It is advisable for employers to give clear guidance to an employee with a disability (as well as all other employees) regarding the quantity and quality of work that must be produced and the timetables for producing it.
- If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
- Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious.24 Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.25
As I’ve stated before, any guidance that the EEOC can offer on these topics will give employers (and employees) one more piece of the ADA puzzle.
But employers should be cautious about applying the guidance too matter-of-factly. Each situation will still require its own fact-intensive inquiry and Connecticut, in particular, will have its own rules on what is appropriate that may differ from federal rules. Because the EEOC’s guidance is not binding, courts are still free to analyze the ADA as they see fit and do not need to "defer" to the agencies suggestions. . And as the EEOC also notes, the guidance may also be tweaked if the ADA Amendments Act of 2008 is passed by the Senate this fall.
However, even with these concerns, the EEOC’s guidance today is well worth reading. As I continue to digest it, I’ll followup in the upcoming days with any additional nuggets worth noting.