You’ve got an employee with performance issues. Big time! Initially, rather than fire her, you
make fun of her behind her back put her on a series of performance improvement plans. But, that doesn’t result in — oh, what’s the word I’m looking for? — improvement.
So, you fire her.
Ah, but here’s the little wrinkle for today’s post. The poor performer experienced frequent migraine headaches and struggled with pain and other symptoms caused by endometriosis. As a result of these conditions, she frequently requested medical leave under the Family Medical Leave Act, which you afforded her.
Given the poor performer’s medical issues, before firing her, did you have an obligation to engage in an interactive dialogue with her, consistent with the Americans with Disabilities Act to determine whether her health issues caused her performance issues?
The answer follows after the jump…
* * *
Hello. I hope that this doesn’t come off as too desperate, but I desperately need your vote for this hella-awesome blog in ABA Journal’s Blawg 100 Amici contest. Pretty please — with a cherry on top — vote for The Employer Handbook here, by clicking the banner to the right, or tweeting your support.
(*** wipes brow *** Whew! That was smooth, Meyer. Silky.)
* * *
According to this recent federal court decision, the answer is no. Make that, hell’s no!
It is undisputed that Plaintiff never notified Amazon of a possible connection between her performance problems and her disabilities. As a result, Amazon had no reason to know that a performance-related accommodation may have been in order. It is further undisputed that Plaintiff had multiple opportunities to discuss a possible connection with Amazon while she was being counseled about her deficient performance. This is not a case in which the employee had an insufficient opportunity to request a reasonable accommodation.
But, a word of caution, if an employee with performance issues has a disability of which you are aware, then you may inquire whether the employee needs a reasonable accommodation.
In fact, you must provide a reasonable accommodation to an employee with a disability who needs one to discuss a performance or conduct problem. Ultimately, however, if an employee can’t performance the essential functions of her job with or without reasonable accommodation, then she isn’t qualified to perform her job and you do not have to retain her.