From the desk of Tracie DeFreitas, M.S., CLMS, Lead Consultant — ADA Specialist
Let’s be honest, managing performance issues is not on the top of anyone’s “favorite things to do at work” list. Whether you’re the person responsible for evaluating employee performance, or the one on the receiving end of a less than stellar evaluation, performance reviews can be uncomfortable for all parties involved. Regardless, performance management is necessary at work. At JAN, we frequently hear from employers who particularly struggle with figuring out how to manage performance issues when employees with disabilities are involved. There is sometimes a lack of confidence regarding how to approach performance situations involving employees with disabilities, out of concern for taking the wrong action and violating the ADA. However, holding all employees accountable for their performance and treating employees fairly and consistently leads to opportunities for growth and advancement in the workplace for everyone, which ultimately fulfills the ADA’s purpose of furthering equal employment opportunities for individuals with disabilities.
Establishing and applying performance standards uniformly allows employers to consistently evaluate employees and readily identify and respond to performance issues. Performance issues can occur for many reasons and can sometimes develop due to disability-related limitations, but this may not be known prior to addressing performance issues. When it becomes known that disability-related limitations are contributing to poor performance, reasonable accommodation may enable employees with disabilities to meet performance standards. Reasonable accommodation should help employees with disabilities meet existing performance requirements, not excuse them from accountability. The EEOC makes it clear that the ADA does not obligate employers to disregard or change performance requirements as reasonable accommodation. Detailed information about applying performance and conduct standards to employees with disabilities can be found in EEOC’s enforcement guidance on Applying Performance and Conduct Standards to Employees with Disabilities.
Accurate performance evaluations can lead to performance improvement when employees recognize a disability-related connection and choose to disclose a disability and/or request reasonable accommodation in response to poor performance evaluation. When job performance issues become apparent, action should be taken to address issues in a timely manner. Weeks or months should not pass before issues are addressed. Delayed performance management can lead to worsening performance and potential ADA claims when employees believe that adverse employment decisions do not align with their understanding of performance expectations and that decisions were made for perceived discriminatory reasons.
Employees are motivated to work hard when it is known that the quality and quantity of their work matters and that job performance is measured against standards that are applied uniformly and consistently. The following practices may be useful when applying standards and managing employee performance in the workplace:
- Establish written performance expectations at the outset.
- Apply performance standards uniformly and consistently to all employees, including employees with disabilities.
- Document performance issues early, and always.
- Inform employees about observed performance issues. Be direct and focus on performance when discussing the problem, not on disability. Explain the consequences of not meeting performance requirements, offer clear expectations for how employees must improve in order to remain qualified, and provide a timeframe for improvement.
- Recognize when disability disclosure, or request for reasonable accommodation, in response to poor performance evaluation is a trigger to engage in the interactive process.
- Offer support and inform employees that assistance is available to enable employees to meet performance standards. Explain how to request assistance. For example, mention something like, “If you believe there is anything we can do to support you in meeting the required performance standards, please let [XYZ person] know.” This creates a safe space for disclosure and opens the door to discuss reasonable accommodation, which can play a key role in performance improvement. When disability-related information is shared, it becomes obvious to engage in the interactive process.
- Explore, choose, implement, and monitor accommodations to support performance improvement.
- Document the reasonable accommodation plan and monitor accommodations with the goal of resolving performance issues. When reasonable accommodation is addressed as part of the process, prepare separate documentation regarding the accommodation plan, to be retained as a confidential medical record.
Assuming performance issues are in-fact disability-related, anticipate performance improvement after implementing effective accommodations. Remember, the need for accommodation can be on-going and so it may be necessary to check-in with employees to see that accommodations are working effectively and that performance requirements are being met. It may also be necessary to inform HR or management staff, those on a need-to-know basis, about accommodations that have been implemented. For example, if an attendance policy is modified and a flexible schedule applied, this is something that management may need to be aware of so an employee who is being accommodated is not penalized for late arrivals.
What if performance does not improve with accommodation? Sometimes this happens. Was a good faith effort made to support better performance with accommodation? Are there alternative accommodation solutions to consider? Have you contacted JAN for assistance? Be sure to have exhausted accommodation solutions, including the possibility of reassignment to a vacant position. Sometimes, an alternative position will offer the greatest opportunity for success.