A manager came to me the other day and asked, “What if I suspect an employee of having a learning disability? Do I have to look the other way regarding his poor performance?” There seems to be a misconception that you cannot hold an employee accountable to do his or her job if he or she has a disability.
This article will examine that issue, but first let us look at what employers should be doing to ensure they are not discriminating against any employee when it comes to managing performance. There are several questions that need to be part of the assessment of a company’s performance management practices:
• First, “was a thorough job analysis conducted to define the essential functions of the job?” According to the US Equal Employment Opportunity Commission (EEOC), “Most jobs require that employees perform both essential functions and marginal functions. The ‘essential functions’ are the most important job duties, the critical elements that must be performed to achieve the objectives of the job. Removal of an essential function would fundamentally change a job. Marginal functions are those tasks or assignments that are tangential and not as important.” The Americans with Disabilities Act (ADA) applies the test that essential functions are “job-related and consistent with business necessity.” Without a thorough analysis of the job (tasks included, results expected, tools and equipment used, environmental factors, etc.) it is harder to make the case that your expectations are job related.
• Second, is there a clearly written job description outlining the essential functions, as well as skills, knowledge, abilities, and other characteristics needed for the job? The job description should outline what is required of the person in the job regarding work hours, environment, reporting structure, tools and equipment operated, and any physical or mental demands. After reading the job description there should be no doubt in the employee’s mind what kind of work he or she will be doing and the context within which it will be completed.
• Third, has the individual employee been given specific behavioral expectations, clear performance standards (quality and quantity), and measures for evaluating his or her performance against those expectations in writing (so there is no misunderstanding about what is expected)? This goes beyond the job description that is written in a more general way. This is related to the specific results a person is to achieve, and how they are to achieve them, i.e. annual job objectives.
• Fourth, are all employees who hold the same or similar positions consistently held accountable for the same behavioral expectation and performance standards?
Hopefully, the answer to all of those questions is a resounding “yes”. If not, the place to start is to go back to the basics: analyze the job, define both the essential functions and marginal functions of the job, write a specific job description, clearly outline behavioral expectations, performance standards, and evaluation measures. Make sure those get clearly communicated to all employees and that all managers are consistently holding people accountable for them.
If you have done that, now we can talk about what happens when someone is not meeting the expectations. Let’s first talk about what would happen to any employee who is not meeting expectations; then we will address the disability issue.
When you first realize an employee is not meeting one of your expectations or falling short of meeting performance standards – have a conversation with him or her about it. Do not let it go to the point that they have totally failed. Remember that your job as a manager is to help them be successful.
Go back over the written expectations and standards and make sure they clearly understand what is expected. Then give them your evaluation of how they stack up against those standards. Ask them why they are failing to meet them. Give them a chance to tell you if there is anything wrong (like a disability of some sort, as an example). Find out what you, as his or her manager, can do to help them improve, for example closer monitoring, or more training). And finally, get a commitment on what the employee will do to improve. As with all performance discussions, document the conversation and keep it in a locked file.
If during the conversation the employee discloses that he or she has a disability that interferes with his or her ability to do the work, you must discuss accommodations. The ADA requires that a “reasonable accommodation” may be required to assist the employee to meet his or her performance standards. According to the EEOC, a reasonable accommodation “is any change in the work environment or in the way things are customarily done that enables an applicant or employee with a disability to enjoy equal employment opportunities.” Ask the employee if there is any reasonable accommodation that would help him succeed in meeting the essential functions of the job.
In thinking about how to accommodate, it is helpful to consider the idea of “essential” versus “marginal” functions of the job. Perhaps the manager can reassign some of the marginal tasks so that the employee can place more focus on performing the major functions. While working in the field of disabilities for over 10 years, I learned to rely on The Learning Disabilities Association as a ideas on how to accommodate people with disabilities. It can serve as a great resource for managers as well. You can access the LDA through their website http://www.ldanatl.org
While only a small sample, here are some examples of reasonable accommodations a manager or supervisor might make are:
• For an employee who has dyslexia, having someone read instructions to the employee, putting instructions on a tape recorder, or using a “reading pen” that scans the printed word and sends auditory feedback.
• For an employee who has a uncorrected visual impairment, use larger print, or use colored backgrounds that make the letters easier to read.
• For employees who have problems writing, use software that assists with spelling and grammar or allow the employee to do verbal rather than written presentations
• For employees with organizational skill deficits, provide a professional organizer, send them to classes in time management, help them with creating filing systems, reduce their workload of “marginal” tasks and/or build in some organizational time into their schedule
• For employees with poor socialization skills, provide regular coaching and feedback, help them role-play potentially stressful situations
• To help other employees give classes on diversity and respecting differences
• For certain disabilities where medical issues are prevalent, adjusting the attendance policy can be considered a reasonable accommodation by the ADA, absent an undue hardship.
The ADA does not call for accommodations that cause an “undue hardship” on the employer. Most experts agree that there is also no expectation that an employer lower the production standard (quality or quantity) because the person with a disability cannot meet it.
People are often reluctant to come forth with the information that they have been diagnosed with a disability until their performance is questioned. Many managers new to a department have come to me to discuss an employee whose performance was “excused” for years, (particularly if he or she was well liked by co-workers), but who is just not meeting expectations. In a number of those instances we have uncovered previously undisclosed disabilities.
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities” (for example, seeing, hearing, walking, speaking, learning, breathing, etc.). It also says that a record of such impairment, or being regarded has having such an impairment” also makes them a “qualified individual with a disability.” If a company has been excusing a person’s behavior or poor performance for years, it could be argued that the company has regarded them as having such an impairment. Some even argue that by excusing poor performance they have already been providing accommodations. I would argue that excusing poor performance, or looking the other way is not an accommodation, nor is it fair to the person with a disability or those with whom he or she works.
It is not the responsibility of the company to help an employee get a diagnosis for a disability, as decisions related to medical conditions are definitely outside the scope of an employer. However, once the employee discloses the disability, the ADA allows the employer to get documentation or even to order a medical examination. Such inquiries are limited to whether or not the employee is able to perform the essential functions of his or her job, or whether or not he or she can work without posing a threat to him/herself or others.
There is always a concern about disciplining individuals with disabilities when it comes to performance issues. Remember the purpose of the ADA is not to protect people with disabilities from being disciplined; it only protects them from being discriminated against because of their disability. A number of court decisions seem to indicate that there is no protection by the ADA from consequences even when the disability caused the particular behavior. The only requirement seems to be that the discipline needs to be job-related and consistently applied.
Managers also ask for advice in evaluating the performance of people with disabilities. People with disabilities should be evaluated in the same manner that other employees are evaluated – on performance standards and expectations that are job-related. Keep in mind that it is not expected that you change the essential functions of the job, but if reasonable accommodations have been made which substantially change “marginal” functions, those performance measures should have been adjusted accordingly; therefore an employee would still be rated on the same standards for the essential functions, but on adjusted standards for other marginal functions.
While I have worked in the disability field much of my adult life, I certainly do not consider myself an expert on the ADA. My understanding of the intent of the ADA is to protect people from discrimination due to their disability, not to give them unfair advantage because of their disability. Many of my friends with disabilities will tell you they are not looking for a “leg up” just a “hand extended out” to help them play on a level field.
Managing a person with a disability should be essentially the same as managing any other employee. It gets back to the basics: clear expectations and performance standards, clear performance indicators and measures of results; clear communication; a fair evaluation based on job-related goals and objectives; and a willingness to help them find ways to overcome those things that keep them from successfully performing their jobs.
Beth Mollenkamp is a human resource professional with over 20 years of experience in managing human resources and non-profit businesses. She has worked with people with disabilities and their families for years. She is also an internet marketer and proud member of
Wealth Creations Network.