Q: Our employee notified us she is suffering depression after we tried to discipline her for disruptive and manic behavior towards her colleagues. Are we now stuck with this employee, or can we fire her?
A: It’s a common misconception that an employer cannot address performance or behavior-related concerns if an employee qualifies for protections under the Americans with Disabilities Act (“ADA”) (or whatever State-specific anti-discrimination law applies to protect employees with disabilities). But the fact is that employers can still hold an employee with a disability accountable for their conduct and performance. After hearing that a disability is a reason for inappropriate conduct, you can still discipline an employee, but you are also obligated to begin the interactive process to determine how you can best assist her with preventing a repeat of this conduct. In other words, you would proceed with two paths; one under the ADA and the other under your workplace conduct rules. Keeping them separate also helps stage the employer’s case should the employee try to sue later for any sort of disability discrimination.
Moreover, employees cannot use a disability as a shield from consequences of their behavior or performance if the disability is first being asserted only after the conduct occurred.
You can also inform the employee about your company’s accommodation policy and process. If the disability is not apparent, the ADA allows employers to request documentation from a medical care provider to support whether an employee has a disability, as well as the possible accommodations to put in place for the employee.
With instances of workplace violence on the rise, many companies have instituted zero tolerance policies with respect to aggressive, violent or threatening workplace behavior. If your company happens to have such a policy in place, you could very well have grounds to terminate the employee notwithstanding her ADA-covered disability. However, this type of situation is very fact-specific and should be discussed with legal counsel first, or a Forework HR specialist.