You have welcomed, trained, and assigned work to a promising new employee. Some errors and inefficiencies are expected at the outset. But as the months pass, the mistakes continue, and the employee’s productivity continues to lag behind. More coaching is provided, and while the employee makes an effort to improve at first, before long they seem resistant to additional instruction. As the mistakes and deficiencies pile up, you decide that a corrective action or termination is warranted. What so often happens next? Two words: medical leave.

The employee may call off just as the supervisor is preparing the corrective action or termination notice. Or the employee may call off right after a corrective action notice is delivered. What then? Employers need to avoid a breakdown in the process by taking appropriate steps to comply with the law, including appropriately responding to medical leave or ADA accommodation requests while reinforcing expectations.

How Does FMLA Leave Affect Employee Performance Management?

Employees who experience physical or mental health symptoms can understandably struggle at work. For eligible employees, the Family and Medical Leave Act (FMLA) provides them with time off to obtain the treatment they need or to recover from a flare-up to their condition.

Employers do not need to excuse prior poor performance, but, following the leave, the employer should reiterate work expectations and provide the same opportunity to improve that is given to employees who did not take job-protected leave.

Can an Employee Request ADA Leave If They Are Not Eligible for FMLA Leave?

Suppose your underperforming employee has been working fewer than 12 months and, as a result, does not qualify for FMLA leave. This is not the end of the story.

If the employee has articulated they need time off for a physical or mental health condition, the employer must consider the possibility that the employee may have a disability protected by the Americans with Disabilities Act (ADA), a law that requires employers to consider (and often provide) leave as a reasonable accommodation.

You should, of course, request documentation of the employee’s condition and accommodation needed, and, if the condition qualifies as a disability, enter into the interactive process regarding the employee’s accommodation request. Similar to the FMLA, when the employee returns from ADA leave, the employer should reiterate work expectations and provide the employee with the same chance to improve that is given to nondisabled employees.

Does an Employer Have to Provide an Employee's Requested Accommodation?

An employee returning from medical leave under either the FMLA or the ADA may seek further accommodation or the employee may request accommodation at the workplace instead of a leave. Importantly, under the ADA, an employer:

• Does not have to agree to an accommodation that results in essential duties either not being completed or being shifted to other staff.
• May propose a different but equally effective accommodation to allow the employee to perform their essential duties.

Employees requesting an accommodation do not always realize that the employer can legally decline their requested accommodation and instead offer an alternative, and tempers may flare. The employee may refuse to return to work until you agree to what they requested.  Sometimes, what happens next is a breakdown in the interactive process.

What Happens When the ADA Interactive Process Breaks Down?

How, when, and why the interactive process breaks down is critically important in future litigation that may ensue. If the employer fails to consider or respond to the employee’s requests, a court may hold the employer liable for a failure to accommodate. However, if the court finds it was the employee who stopped engaging, it should find no employer liability for a failure to accommodate.

Your goal should be to avoid being pegged as the party responsible for the breakdown. How? By proposing several alternative and equally effective accommodations to the employee, when possible, while also expressly inviting them to identify other options.

If the employee will not budge from the specific accommodation the employee requested and refuses to talk further or return to work after being offered a reasonable, alternative accommodation, you may end up treating the employee as having abandoned their job. If they later file an EEOC charge, you will be ready to defend it with the documentation you prepared throughout the interactive process.

How Can Employers Prepare for Eleventh-Hour Accommodation Requests?

Perhaps you will never find yourself in this situation, but you should plan for it just in case.

• Review job descriptions to ensure that they clearly articulate each position’s job functions, including tasks expected to be performed as well as the location of the work and the fact that regular attendance is essential. 
• Ensure that HR staff are trained on employee and employer rights and responsibilities under the FMLA and handling of accommodation requests under the ADA. 
• Train supervisory employees so that they do not respond to leave or accommodation requests in a way that causes problems down the road.  
• Take a calm and measured approach during the interactive process making efforts, if needed, to determine equally effective alternative accommodations. 
• Document discussions carefully throughout the interactive process.

Questions About ADA Accommodations or Employee Leave?

Navigating an ADA accommodation request, the interactive process or FMLA leave alongside employee performance or disciplinary concerns can be challenging. Germaine Winnick Willett and Ice Miller’s other labor and employment attorneys assist employers with ADA accommodations, FMLA and medical leave, employee performance and discipline, as well as employment discrimination, harassment, retaliation, wage and hour, contract, draft employment policies, and other employment-related issues, and provide advice and counsel regarding employer investigations.

For additional information, contact Germaine Willett or any member of Ice Miller’s Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.