Managing an underperforming employee is one of the trickiest jobs business leaders have, especially if you’re a startup or small business without a head of HR to turn to for guidance.
The job gets even more complicated if an employee has a disability, which is what we’ll dedicate this blog post to. “Disabilities” don’t just include things like using a wheelchair or having a vision impairment: the Americans with Disabilities Act (ADA) defines “disability” broadly, including conditions like…
Anxiety, depression, and other mental health conditions.
Cancer and other diseases that require extensive treatment.
Diabetes and other conditions that require continual monitoring.
Any physical or mental condition that severely limits a major life activity (including working).
In this post, we’ll break down what startup founders and small-business leaders need to know about the ADA and how it might impact the way you handle performance management.
How the ADA Applies to Employee Performance Management
You’ve probably heard at least one news story about a business being sued by someone for not meeting ADA accessibility standards. Because of those stories, that’s the way most people think about the ADA – if they’re aware of it at all.
But the law also states that, at businesses with 15 or more employees, employers must provide reasonable accommodations to employees who have a disability that could impact their ability to perform their job. (There are several limits and details here, which we’ll get to in a minute.)
Big picture, that means that if one of your workers has mentioned to you or another company leader that their poor performance is tied to a disability, you must try to find a “reasonable accommodation” that enables them to do their job according to performance expectations.
Here’s an example: let’s say one of your employees has had a lot of trouble meeting deadlines lately. At a meeting to discuss their performance, they say, “Yeah, my anxiety has gotten so bad I’m not sleeping well. I can really feel it dragging me down.”
As soon as you’re aware of the disability – in this case, anxiety – and that it is tied to the performance issue in question, you’re responsible to start what the ADA calls the “interactive process” of trying to find “reasonable accommodations” that will enable the employee to do their job.
In this particular case, accommodations might look like more work-from-home days so they have the chance to sleep and work when they’re able. If that solution doesn’t get in the way of your business operations and enables them to perform the essential functions of the job, then it’s considered a reasonable accommodation to make.
Reasonable Accommodations and Exceptions
The goal of the ADA is not to put a burden on employers, but rather to make sure that people who are willing and able to work are given a reasonable chance to do so. To that end, the ADA outlines several caveats to its “reasonable accommodation” requirements:
Guidelines only apply to companies with 15 or more employees. (Though some state-level laws may apply at lower employee thresholds, so be sure to investigate.)
Employers are only responsible for offering accommodations for conditions they’re aware of. If the employee chooses not to communicate their condition, the employer can’t be expected to know about it.
Employers aren’t expected to make an accommodation if it would cause them an “undue hardship.” According to the EEOC, “undue hardship” is something that “would result in significant difficulty or expense, based on the resources and the operation of your business.”
The goal is to find an accommodation that works for both parties (that’s the “reasonable” part). If an employee suggests something that’s too expensive or burdensome, you’re allowed to propose an alternative.
One important note: “interactive process” isn’t just a name. Finding accommodations usually involves some back and forth between employer and employee, as well as some trial and error. The point is not to find the right solution the first time; it’s to find a solution that works for everyone.
Performance Management and Accommodations
Job performance expectations should never be impacted by a person’s disability status. Put another way: you’re never expected to change a job description to accommodate an employee’s disability.
The goal of offering an accommodation is to enable an employee to do their job according to expectations that have been made clear to them (in a job description, performance review, etc.).
If an employee is not able to meet job expectations even with an accommodation, you may have a case for terminating that employee or moving them to a different role. Keep in mind, though, that in all terminations it’s best to follow the process of documenting expectations, performance, and disciplinary action. This is legally required in some states and is, in every state, a good way to manage your risk if the employee decides to sue you for improper termination.
Get Support with Performance Management
Regardless of your employees’ disability status, performance management is never easy but it’s one of the challenges we love helping our client solve.
Whether you’re interested in finding out if you’re responsible for offering ADA accommodations or you’d like to hear more about how we can help you manage performance throughout your organization, feel free to get in touch. We’d love to help ensure that your efforts are making everyone in your organization better.
Disclaimer: The information contained in this blog post is provided for informational purposes only, and should not be construed as legal advice on any subject matter. CognosHR does not practice law and does not give legal advice. The information contained on this site and in other recommended human resources “best practices” is not legal advice.