EEOC Update guidance to conform with Americans with Disabilities Act Amendments of 2008

The EEOC’s update to its guidance entitled "The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities" makes clear that employees with disabilities must meet job-related qualifications standards that are consistent with business necessity, and must be able to perform the essential functions of the position, with or without reasonable accommodation.

The guidance provides the following examples of performance standards that employers may apply to persons with disabilities:

• Employers may apply the same quantitative and qualitative requirements for performance of essential functions to employees with disabilities that they apply to employees without disabilities, such as production standards.
• Employees may use the same evaluation criteria for employees with disabilities as for employees without disabilities, such as annual performance reviews.
• An employer may give an employee a lower performance rating even if the employee responds by revealing that a disability is causing the performance problem.

But the following may not be permissible:

• An employer cannot necessarily require that an employee with a disability perform a job in the same manner as a non-disabled employee. Reasonable accommodation may be required.
• An employer cannot withdraw a reasonable accommodation because an employee is given an unsatisfactory performance rating.

The guidance also instructs employers on how to properly apply conduct standards:

• Employers may discipline employees with disabilities for violating a conduct standard.
• As long as the conduct rule is job-related and consistent with business necessity, an employer may discipline an employee even if the employee's disability caused violation of the conduct rule.

Regarding attendance, the guidance says:

• Employers must grant employees with disabilities the same access to an employer's existing leave program as all other employees.
• Employers must modify attendance policies as a reasonable accommodation, absent undue hardship.
• However, employers need not completely exempt employees with disabilities from time and attendance requirements. For example, an employer may be able to demonstrate that an employee's chronic, frequent, and unpredictable absences preclude the employee from performing one or more essential functions of the job.

As seen above, the ADA requires employers to navigate a myriad of requirements in enforcing their performance, conduct, and other standards. Employers, and their supervisors, must become intimately familiar with the ADA's requirements to make sure they do so lawfully. Also, keep in mind that although courts generally adopt the EEOC's guidance on the laws it enforces, they are not legally bound to do so. Some courts, therefore, may interpret the ADA differently than the EEOC.

If you have any questions about these issues or other ADA or employment-related issues, please contact The Law Offices of Donald W. Heyrich.