Unintentional, Perceived Discrimination
For months, Frank had been the epitome of a problematic employee; attendance issues, sub-par performance, and behavioral issues that have resulted in frustrated coworkers. Frank’s supervisor administered a record of discussion, addressing all three of these concerns with the hopes of rehabilitation and significant changes. Shortly after the disciplinary action, Frank underwent shoulder surgery and took a job-protected leave of absence for 8 weeks, returning to work with a reasonable accommodation as his recovery warranted short-term disability.
Upon his return, the areas addressed in his record of discussion began again and a written warning was quickly delivered. Frank’s supervisor mentioned in his written warning “after returning from an FMLA leave of absence, Frank has been absent on 4 occasions in a 2-week period.” Shortly after this second disciplinary document was administered, Frank got into a verbal altercation with a co-worker in front of customers who filed a complaint with management and Frank was promptly terminated for the incident. A few weeks later, the company received notice from the state that Frank had filed a wrongful termination suit, claiming that he was being discriminated against because of his job-protected leave of absence and subsequent disability.
A common situation that arises with employees who are out on a medical leave of absence, or who are protected under ADA due to a disability, is the issue of disciplinary action. How can you effectively apply performance or conduct standards to your employees, while not violating ADA regulations?
An employee with a disability is still required to meet the same production and performance standards as a non-disabled employee in the same position, and an employer may hold the employee to the same performance and conduct standards as they do to all other employees. In most situations, the employee’s disability will not be a relevant factor in reviewing conduct or performance violations. The ADA does not protect employees from the consequences of violating conduct rules, even when such conduct is caused by the disability.
What you have to make certain of however, is whenever administering disciplinary action, you make it very clear that the discipline and the disability or leave of absence are entirely unrelated. Frank’s supervisor made the mistake of mentioning his leave in his write up, which opened a can of worms with regards to the perception of discrimination.
Navigating the world of leave and disability management can be a headache with so many laws and regulations to adhere to and form your policies around. HRCentral specializes in alleviating this stress from organizations, allowing you to focus your resources on your employees and customers. Contact us today to discuss how we can help you implement a program that is streamlined, compliant, and beneficial for both your company and your employees.