Americans with Disabilities Act | McKenzieHR

Americans with Disabilities Act

Question: A supervisor informs HR that a hearing impaired employee has reached the maximum level of attendance points allowed. The supervisor is recommending termination. How do you handle it? Thank you.

FROM: CYNTHIA

INDUSTRY: UNKNOWN

RESPONSE:

Cynthia,

You do not state that the employee has received any type of corrective action at this point.  To summarily terminate any employee – whether the employee is disabled or not is not fair to the individual as they were never given an opportunity to correct their behavior. If you are using a point system, there should still be some type of progressive discipline in which employees are notified when they are reaching an unsatisfactory attendance record.  Additionally, depending upon the State you are in, you will have a better chance of winning an unemployment hearing if you have a record of progressive discipline for the attendance problems.

I am assuming you are asking this because of the fact that the employee has a disability. The Americans with Disability Act requires that an employer make reasonable accommodations for a person with a disability so they can meet the expectations of the job.  It does not require an employer to lessen the performance and attendance standards for a person with a disability.

With that being said, however, there are a few questions I have.  Is this individual required to go to a doctor for his/her condition on a regular basis?  If so, do these doctor’s visits affect his/her attendance and add to the number of points the individual receives under your attendance recordkeeping system?  If your answer to each of these questions is yes, then you may want to reconsider termination as allowing the employee to have an additional couple of days to attend to medical responsibilities could be considered a reasonable accommodation?

When making these types of decisions, try to put yourself in the position of a member of a jury in a discrimination lawsuit.  If the employee never received a disciplinary notice and is held to the same standards as non-disabled employees, would you as a member of a jury decide in favor of the disabled employee or the employer?

You did not give me a lot of facts to go on here so I am doing a lot of speculating.  So if you could supply me with a few more facts, I am sure we can help you. Do not hesitate to contact me with additional information or if we can be of additional help to you.

Thanks for Asking Bob

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