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	EMPLOYMENT LAW UPDATE: EEOC Offers Guidance To Employers Employment/Labor  September 2008 By Christopher J. Battersby The Americans with Disabilities Act often raises more questions for employers than it answers. For example, what should you do when an employee’s disability contributes to performance or conduct problems? Or, how can you safely discipline a disabled employee -- even when the problem is not caused by the disability --without potentially violating the ADA? Lawyers and judges are called upon every day to answer these questions, yet there are still many ambiguities in the law. Earlier this month, the U.S. Equal Employment Opportunity Commission released a new publication, The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, to reduce this type of uncertainty, and to clarify that employers can apply the same performance and basic conduct standards to all employees, including those with disabilities. 1 Specifically, the EEOC explained that under the ADA: • Employers may apply the same requirements for “essential” job functions-duties that must be performed to meet job objectives-to disabled and nondisabled employees alike. (A reasonable accommodation may be required to assist a disabled employee in these functions.) For example, assume that a company increases the sales territory for all of its salespersons, one of whom is disabled; and the disabled employee asks for a smaller territory as an accommodation. According to the EEOC, the employer is not required to decrease the disabled employee’s sales territory (although it should explore other possible accommodations and possibly reassignment). Rather, the employer is entitled to require all employees to perform the same essential job functions. • Employers may discipline disabled employees for violating conduct standards, provided the disability does not cause the violation. If the disability causes a violation of conduct standards, the employer may still impose discipline if the standards are job-related, consistent with business necessity and applied even-handedly to other employees. For example, assume that a bank teller suffers from Tourette Syndrome, causing him to bark and shout-distracting other employees and causing them to make mistakes in their work, and resulting in customer complaints. The employee claims that he cannot prevent the shouting and barking, although he can perform his basic accounting duties. According to the EEOC, terminating the employee is allowed because it is job-related and consistent with business necessity to require bank tellers to (1) conduct themselves appropriately when serving customers, and (2) refrain from interfering with co-workers’ ability to work. Further, the EEOC explains that the employer need not consider reassigning the bank teller, because he never performed the essential functions of his job satisfactorily. • Employers may discipline employees who violate workplace policies prohibiting illegal drug use at work-regardless of whether the drug use is related to a disability. • Employers may have to modify attendance requirements as a reasonable accommodation, but are not required to: completely exempt an employee from time and attendance requirements; grant open-ended schedules (e.g. the ability to arrive or leave whenever necessitated by a disability); grant indefinite leaves of absence; or accept irregular, unreliable attendance. (These and other guidelines in the article are available at the EEOC’s website, www.eeoc.gov.) The EEOC’s new publication reflects an important emphasis on what the EEOC calls the “employer’s right to hold all employees to basic conduct standards;” and it will undoubtedly help employers and courts in interpreting employer obligations. In particular, the EEOC’s emphasis on policies as a basis for discipline underscores the importance of maintaining and promulgating written policies prohibiting all matters which could result in discipline-not only insubordination and inappropriate conduct toward clients and co-workers, but also offensive e-mails, using the Internet to access inappropriate websites, and drug use. ____________________________ 1 It is important to bear in mind that while the EEOC offers valuable guidance regarding the ADA, courts are not required to follow its opinions. Moreover, other anti-discrimination laws, which the EEOC does not interpret (such as the California Fair Employment and Housing Act) often apply. *********** If you would like to discuss how the issues discussed in this Alert might affect you or your business, please contact Christopher Battersby at (949) 474-1880 or the attorney with whom you regularly work. This Alert is published as a service to our clients and friends. It is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice. ©2008 Berger Kahn, A Law Corporation. All Rights Reserved. Back
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