When reading case law involving litigation over Americans with Disabilities Act claims, one could be convinced that the workplace is a constant battleground between employees seeking excessive accommodations and employers bound and determined to deny any measures requested by workers with medical issues. In reality, most employers are sympathetic to employees’ medical needs, and often go to great lengths to assist a worker facing challenging personal issues. In some situations, this sympathy can extend to withholding constructive criticism from workers with serious medical conditions whose job performance deteriorates for reasons that are related or unrelated to such conditions.
Consider the following scenario: A client contacts us and says that they have reached the end of their ability to work with an employee with a medical condition, whose work is simply not meeting minimal standards. When we review the employee’s performance evaluations, they do not support this narrative, often rating the employee’s work as satisfactory. When we ask about this discrepancy, the employer responds that given the issues the employee was facing at that time, they did not believe it appropriate to provide a critical evaluation or place the employee on a performance improvement plan.
Federal courts and the EEOC have said that failure to provide honest constructive criticism to a disabled employee is a form of discrimination under the ADA when a non-disabled worker would have received such guidance. Without the benefit of such feedback, the disabled employee was unable to understand and correct these performance deficiencies. In addition, the evaluations provided do not match the later characterization of the employee’s performance, raising factual issues as to the employer’s motivation for the termination decision.
As difficult as it may be, employers cannot use the employee’s medical condition as a reason not to manage that worker’s performance. While providing such feedback could be delayed due to a serious medical event, the employer should make sure it is documenting and providing honest feedback to workers regardless of a medical condition. While treating such workers with care and sympathy is admirable, sheltering the employee from the ability to correct work issues does not help either party if this eventually leads to a termination decision.
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