Is Misconduct Protected When a Disability is Concerned?

Are employees with disabilities held to the same standard of conduct at work as all other employees? Or, does a disability automatically give an employee a “get out of jail free” card if they behave badly in the workplace? The answer comes down to a simple question: what do the Equal Employment Opportunity Commission (EEOC) and Americans with Disabilities Act (ADA) consider a disability driven act or conduct?

When addressing misconduct by an employee with a disability, the first question to be resolved is whether there’s a causal link between the employee’s disability and the behavior. That’s important in determining employer’s appropriate response, whether it be termination, discipline, or no action at all. Most businesses have a full employee handbook that says what behavior is and isn’t acceptable in the workplace. So long as each employee is given this handbook and the rules are clear, an employer has the right to enforce them as written, whether the employee in question is disabled or not, and regardless of whether or not the violation in question can be linked directly to their disability.

The ADA becomes a concern if the targeted employee claims they committed a workplace violation, and had to do so, due to their disability. The litigation then focuses on the actions of the employer. Was there an accommodation requested and provided, or not provided? Is there a reason why an accommodation was not provided and thus led to a violation? The investigation can take a different tone when the focus shifts.

Proof of Disability in Misconduct Cases

Part of the ADA states that a disabled employee cannot be treated differently unless it is necessary for their benefit, such as giving them special access to an elevator lift if they are wheelchair bound. Disciplining an employee for an obvious workplace violation that is not related to a disability does not call for special treatment. To that end, an employer has the legal ability to discipline a disabled employee for such violations and the disability is considered to be a moot point. The employee still retains the right to try to defend themselves by providing proof that the disability indeed did cause the conduct violation. Professional reports like medical records, physical therapy notes, rehabilitation history, and so on may be needed as proof.

If the employee targeted by the discipline cannot prove that their disability has a direct link to the alleged misconduct or violation, the employer may explore penalization options. However, any discipline chosen has to be reasonable, be related to the workplace violation in question, and be conducted to the same procedures and with the same standards as it would be exercised against any other employee. Simply put, you need to gather all of the facts of the case. The ADA takes into consideration both conduct matters and how a company provides accommodations or enforces any punishment for not adhering to their rules or standards for conduct.

Common Workplace Standards & Relevant Violations

There are numerable workplace standards that you can find in virtually any occupation that do not consider disability or lack of disability:

  • Violence or intimidation is strictly prohibited.
  • Destroying company property intentionally is strictly prohibited.
  • Open insubordination will be subject to varying disciplinary actions.
  • Sexual harassment or sexual behavior between employees during work hours is strictly prohibited.
  • Illicit drug use is strictly prohibited; alcohol use is prohibited unless specifically stated otherwise by the employer, such as during a special work event or party.
  • Company computers are only to be used for company-approved activities.
  • Blatant disrespect towards company clients, welcome patrons, or even members of the public is strongly discouraged and can be disciplined through varying methods.

Each employee handbook will also likely have an extended list of other behaviors that are not acceptable. If there is vagueness in the language of these rules, there might be room to challenge any discipline related to them. However, vagueness does not automatically invalidate the rule itself.

Companies can act on violations of the rules, but needs to tread lightly when there is a conduct violation that takes a disability into account. As the employee, you should remember that the employer should only evaluate the situation and choose discipline, if necessary, based on case-by-case facts, your disability and how it affects your job position, and the overall duties expected of company employees.

For example: A company can enforce a code of conduct rule that demands employees always be courteous with clients. If an employee has Tourette syndrome and has unpredictable, uncontrolled outbursts of disruptive and sometimes “rude” behavior, the employer might have legal ground to not keep them in a position that interacts directly with the public. If such an employee does have an outburst in front of a customer, the employer could likely “discipline” them by moving them out of that position.

As another example: An employee with Tourette syndrome should be free to work in a solitary or “back-of-house” position that does not involve the public eye. Someone who works the stockroom and regularly has episodes of uncontrolled outbursts should not be subject to any discipline, as they are not damaging the company’s reputation through regular public disruptions. Furthermore, if an employee is aware of how their Tourette syndrome symptoms affect them, they could even request placement within a company position away from the public, and the employer has to make an honest effort to accommodate them.

Accommodation Timing is Key

An employee with a disability that leads to misconduct can ask for accommodations to avoid the issue in the future. When such an employee asks makes a difference, though, in the policies that will follow. While an employee can ask for an accommodation for the first time after violating a conduct rule, that is not ideal. Disabilities need to be disclosed and accommodations requested before workplace rules are violated. This makes everything simpler for the employee, employer, and potential clients.

If you have questions about if you have been treated fairly at work due to a conduct violation, feel free to call our Omaha employment law attorneys at Carlson & Burnett by dialing (402) 810-8611. Our entire focus is on helping you through this troubling time with as little stress as possible, regardless of complexity of your problem or the parties involved. Contact our team to schedule a free initial consultation.

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