Thursday, February 26, 2009

ADA and Employee Misconduct

In light of the recent changes to the Americans with Disabilities Act, now is a good time to revisit a increasingly common (and still undecided) area of difficulty between employees and employers: whether the ADA protects employees from discipline and/or termination for disability-related misconduct.

The January/February 2009 issue of the Municipal Lawyer has a detailed article by Siona Windsor titled "The Americans with Disabilities Act," about the challenges municipal employees/employers face regarding mental disabilities that cause workplace misconduct (such as violence).  However, much of her article applies equally to both public and private workforces; especially the challenges caused by a split in the federal circuits on how to treat disability-related misconduct.

As Ms. Windsor discusses, the Second, Ninth and Tenth Circuits all have found that disabled employees cannot be held to the same standard of conduct as non-disabled employees.  While these circuits do find a difference between alcohol/drug related disabilities, generally employers operating in these circuits must first engage in a reasonable accommodation analysis (and to be safe a direct threat analysis) before imposing discipline--even for clear violations of express policy.

In contrast to the above three circuits, the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth (Iowa's federal circuit) and Eleventh Circuits all find that employers can hold disabled employees to the same standards of conduct as other employees.  In these circuits, the courts have held that there is a clear difference between discipline for having a disability and discipline for misconduct caused by a disability.

Given the split in the circuits, Ms. Windsor cautions municipalities to exercise caution in disciplining disabled employees for workplace misconduct, regardless of what federal circuit the cities/counties are in.  This is equally good advice for multi-state employers.

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