From the desk of Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
The Americans with Disabilities Act (ADA) does not prevent employers from having workplace conduct rules. Employers are allowed to develop and enforce conduct rules that apply to all employees, including employees with disabilities. However, there is one ADA requirement employers must follow – a conduct rule must be job-related and consistent with business necessity when it is applied to employees whose disabilities cause them to violate the rule.
What does it mean for a conduct rule to be job-related and consistent with business necessity? According to the Equal Employment Opportunity Commission (EEOC) in a publication called The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, the answer depends on several factors, including:
- The manifestation or symptom of a disability affecting an employee’s conduct
- The frequency of occurrences
- The nature of the job
- The specific conduct at issue
- The working environment
So in general, an employer must make a case by case determination when deciding whether to enforce a conduct rule if an employee with a disability cannot comply with the rule because of the disability. The decision is going to come down to looking at the conduct at issue and whether it truly is a problem based on the employee’s job and how the conduct impacts others in the work environment. The following examples, paraphrased from the EEOC publication mentioned above, illustrate this case by case approach:
Example: An employee has Tourette Syndrome, which causes him to bark, shout, utter nonsensical phrases, and make other noises that are loud and frequent. This disability-related conduct probably would not be acceptable in jobs dealing directly with the public, such as a bank teller, a cashier, a teacher, or a retail salesperson.
Example: The same employee with the same conduct, however, could probably work in a different setting, such as in a noisy environment with no contact with customers and not in close proximity to coworkers.
Example: If the same person had less disruptive symptoms, such as infrequent throat clearing and eye blinks, this conduct might be acceptable in many jobs dealing directly with the public.
The good news is that certain conduct rules automatically meet the job related and consistent with business necessity standard so employers don’t have to go through a case by case process to decide whether to enforce them. Here are some examples of conduct rules employers can always enforce, no matter what the employee’s disability or limitations are and no matter what job or work environment the employee is in:
- Prohibiting violence, threats of violence, stealing, or destruction of property
- Prohibiting insubordination towards supervisors and managers
- Requiring that employees show respect for, and deal appropriately with, clients and customers
- Prohibiting inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work)
- Prohibiting employees from sending inappropriate or offensive e-mails (e.g., those containing profanity or messages that harass or threaten coworkers)
- Prohibiting the use of the internet to access inappropriate websites (e.g., pornographic sites, sites exhibiting crude messages, etc.)
- Prohibiting excessive use of the employer’s computers and other equipment for purposes unrelated to work
- Requiring that employees observe safety and operational rules enacted to protect workers from dangers inherent in certain workplaces (e.g., factories with machinery with accessible moving parts)
- Prohibiting the drinking of alcohol or illegal use of drugs in the workplace
Keep in mind that if there is an accommodation that would enable an employee with a disability to comply with conduct rules, the employer must consider providing the accommodation unless doing so poses an undue hardship. For more information about dealing with conduct issues in the workplace, see JAN's A to Z: Conduct or contact JAN to discuss a specific situation.