Yesterday (September 3, 2008), the EEOC issued guidance for employers on when an individual with a disability can be held to performance standards and conduct requirements. The EEOC seemed to express incredulity that employers needed the guidance, saying it receives "numerous questions" on the topic.
As has become traditional for federal agencies that regulate employment, the guidance is in a question and answer format (30 questions in all) and it gives several examples.
The one question I held my breath about was "If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?" I'm not sure why I expected the EEOC to complicate the answer to this question but the answer (Yes, as long as the "conduct rule is job-related and consistent with business necessity") relieved me.
Other topics included what an employer should do when an employee asserts that a disability caused the conduct for which the employee is about to be disciplined ("the employer may still discipline the employee for the misconduct" but should engage in the "interactive process" to determine whether a reasonable accommodation could "address the problem").
Other topics covered are when an employer may have to modify attendance requirements (time off or adjusting start or end times for work), dealing with alcohol or drug use, and imposition of a dress code.
One interesting topic, at least for Tennessee employers, is that the EEOC states that "Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration." The Sixth Circuit has not provided employers with very clear guidance on this point.
Dicta in Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 784 (6th Cir. 1998), complicates the issue. What the court actually held was that there is no "presumption" that uninterrupted attendance is an essential function of every job and that an employer may be required, as a reasonable accommodation, to grant a medial leave. Citing a district court decision, the court of appeal stated that there is no “per se rule that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a ‘reasonable accommodation’ under the ADA.” Cehrs, 155 F.3d at 782.
On the other hand, the Sixth Circuit has also held that the duty to reasonably accommodate does not require the employer to wait indefinitely for an employee's medical condition to be corrected. Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1047 (6th Cir. 1998). Nor are employers under a duty to keep employees on unpaid leave indefinitely until a position opens up. Rather, if an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee. See 29 C.F.R. pt. 1630 app. at 407-08. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996).
So, I'll say it again. When faced with a situation where a medical leave seems to be turning into an indefinite period of time, employers should exercise caution and are well advised to consult with qualfied counsel for specific guidance.
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