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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: ADA, FMLA, and Work Rule Violations
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: ADA, FMLA, and Work Rule Violations
When can you discipline an employee who is protected by the ADA or
FMLA for violating your work rules? Find out what these laws, and the
courts interpreting them, have said about this sticky subject. |
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THIS WEEK'S E-TIP: ADA, FMLA, and Work Rule Violations
Many managers are uncomfortable disciplining employees for work
rule
violations. However, morale and efficiency will suffer if you
don't address
problems like absenteeism, disruptive behavior, or drug use.
But what happens if an employee claims that a medical condition
"made
me do it"? Unfortunately, you can face legal claims for
violations of the
Family and Medical Leave Act (FMLA) or for discrimination under
the
Americans with Disabilities Act (ADA) if you improperly
discipline or
terminate protected employees who break conduct rules.
Just because employees claim that a medical condition is covered
under
the ADA or FMLA, however, doesn't mean they get a free pass to
violate
your work rules. The following discussion explains how these
laws may
impact your ability to address problem behavior by legally
protected
employees.
* Absenteeism *
Since regular
attendance is essential for most jobs, you
generally have
the right to discipline, and even terminate, employees who do
not meet
attendance requirements. However, both the FMLA and the ADA may
limit your right to take these actions for certain absenteeism
protected by
these laws.
The FMLA requires covered employers to provide eligible
employees
with up to 12 weeks of unpaid, job-protected leave in any
12-month
period for covered family and medical reasons. In addition, you
may not
discriminate against employees who take FMLA leave, and you may
not
take an employee's
FMLA leave into account under "no-fault"
attendance
policies.
Therefore, you should not discharge or discipline employees for
absences excused under the FMLA's provisions. So, for example,
in
Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir.), cert. denied,
531 U. S.
871 (2000), the employer violated the FMLA when it terminated an
employee for excessive absenteeism because the absences were
covered under the FMLA.
Similarly, the ADA affects an employer's ability to discipline
or discharge
employees for excessive absenteeism that is related to a
disability. The
ADA requires covered employers to provide reasonable
accommodations to qualified individuals with disabilities,
unless doing so
would impose an undue hardship on the employer.
Thus, in some cases, you may have to accommodate a disabled
individual by allowing more unpaid leave than is provided by
your leave
policy. The ADA, in effect, requires that this additional leave
be
considered "excused" absences or, in the case of no-fault
attendance
policies, not counted for purposes of determining if discipline
is
appropriate.
If, however a disabled employee is unable, even with
accommodation to
achieve reasonably regular and predictable attendance, the
employee
may not be considered a qualified individual with a disability
and his
absences would not be protected by the ADA. Thus, in Wood v.
Green,
323 F.3d 1309 (11th Cir.), cert. denied, 540 U.S. 982 (2003),
the court
determined that an employee who suffered from cluster headaches
was
not a qualified individual under the ADA. He requested an
indefinite
leave of absence so that he could work at some uncertain point
in the
future. The court ruled that since he could not perform the
essential
functions of the job presently, or in the immediate future, he
was not
covered under the ADA.
Note, too, that under both the ADA and FMLA, you can discipline
protected employees for absences not covered by these laws. |
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* Violent, Abusive, or Other Disruptive
Behavior *
When an employee's conduct violates rules prohibiting acts or threats of
violence, abusive language, or other disruptive behavior, your immediate
reaction may be discipline or termination. In response, the employee
may claim that the behavior resulted from either a mental condition or a
substance addiction, and allege disability discrimination. However, the
ADA generally allows you to require all employees to conform to
necessary performance or behavioral standards.
So, for example, in Hammel v. Eau Galle Cheese Factory, 407 F.3d 852
(7th Cir.), cert. denied 126 S. Ct. 746 (2005), the court found that the
ADA did not protect a disabled employee who failed to follow or comply
with company rules and policies, was insubordinate, refused to follow
direct orders from supervisors, and created a direct safety hazard to
himself and coworkers.
The Equal Employment Opportunity Commission (EEOC) takes the
position that you may discipline individuals with psychiatric
disabilities for
violations of conduct rules that are job-related and consistent with
business necessity. However, you must be able to show that you would
impose the same discipline on nondisabled employees. In addition,
although you do not have to excuse past misconduct, you may have to
make reasonable accommodations for qualified disabled employees to
meet conduct standards in the future, unless the accommodation
imposes an undue hardship.
According to the EEOC, for example, an employee with a mental
disability who loses her temper at work and shouts at patrons and
coworkers may be suspended in accordance with the employer's
policies, because she violated a work rule prohibiting such disruptive
behavior. Still, she may be entitled to a leave of absence for needed
treatment as a reasonable accommodation so that she can comply with
the employer's rules in the future.
Direct threats or acts of violence typically are not protected by the
ADA.
For example, in Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047
(5th Cir. 1998), the court determined that an employee fired for
outbursts
directed at fellow employees could not sue under the ADA. The
employer's policy against workplace violence included provisions for
suspension and dismissal for "extremely severe" offenses. The court
said that the ADA does not protect emotional or violent outbursts blamed
on an impairment.
Poor performance also may be protected under the FMLA, if it stems
from a serious medical condition that entitles the employee to FMLA
leave. For example, in Byrne v. Avon Prods, Inc., 328 F.3d 379 (7th
Cir.), cert. denied, 540 U.S. 881 (2003), an employee with a good
performance record was fired after he began sleeping, reading, and
exhibiting disturbing behavior on the job. The court allowed the
employee to proceed with his FMLA claim. It said that if the dramatic
change in his behavior was enough to put a reasonable employer on
notice of his serious health condition, then he was entitled to FMLA
leave
covering the period that his employer treated as misconduct.
* Drug and Alcohol Use *
The ADA also covers alcoholics and rehabilitated drug addicts as
disabled individuals and may require you to give these employees time
off to seek treatment. However, it does not protect individuals who are
currently using drugs illegally or bar employers from fairly and
consistently enforcing their
alcohol and drug use policies.
Thus, you may prohibit the illegal use of drugs and the use of alcohol
in
the workplace and require employees to be unimpaired during working
hours. Furthermore, you may require disabled employees to meet
essential job requirements, including regular attendance and proper
behavior, even if the unsatisfactory performance is related to drug use
or
alcoholism.
So, in Bailey v. Georgia-Pacific Corporation, 306 F.3d 1162 (1st Cir.
2002), the court determined that an alcoholic employee did not have a
discrimination claim under the ADA. Evidence showed that he was
discharged by his employer not for his alcoholism but because he would
not be available for work during his four-month incarceration for
drunken
driving.
* Be Consistent *
Addressing employee misconduct or poor performance is often
uncomfortable and virtually never easy. The whole disciplinary process
becomes even more complicated when you have to be concerned about
potential FMLA and ADA claims.
However, concerns about legal claims should not stop you from taking
appropriate disciplinary action against employees protected under those
laws. Just make sure that you apply your disciplinary procedures
consistently and that you consider appropriate accommodations when
required. Overall, a fair and predictable disciplinary process builds
employee support, remedies problems, and provides a strong legal
defense, if needed. |
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