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Most employers are subject to federal or state laws prohibiting discrimination on the basis of disability.

State law applies to employers of six or more employees and federal law applies to employers of 15 or more employees. Disabilities can affect how employees perform their jobs, and employers frequently are faced with making performance-based decisions. Given the recent amendments to the federal Americans with Disabilities Act, employers will be seeing more and more disability claims and finding that more and more of their employees are covered by this law.

Performance management isn鈥檛 a bad thing, and employers can use it effectively to avoid discriminatory decisions. Setting expectations, identifying standards and metrics or measurements, providing employee feedback and doing it consistently and fairly are the characteristics of good performance management.

Disability law, however, operates on the premise that employees with protected disabilities have legal rights to the removal of workplace barriers. There is considerable misunderstanding about whether that translates into rights to reduced performance standards.

As long as the performance standards are job-related and necessary to the effective performance of the job, employers have no responsibility to adjust them 鈥� even to accommodate a disability.

Before an employee with a disability has a legal right to an accommodation the employee must be qualified for the position. He or she must possess the needed skill set, education, experience or other job-related requirements, and be able to perform essential functions of the position (this part is evaluated with or without an accommodation). That principle helps show how performance management fits. An employer may apply the same quality and quantity standards to all employees when it evaluates performance.

Employees with disabilities and employees without disabilities can be required to meet the same production standards. Employers are not required to change them for employees with disabilities, although they may have a responsibility to change the manner in which employees with disabilities meet their standards. If the standard is to make 100 error-free widgets an hour, that鈥檚 the standard and it can be applied across the board. If the employee cannot meet the standard, it鈥檚 time to explore if there is an adjustment that will allow the employee to do so 鈥� something like removing marginal job functions, changing hours of employment, moving the work station, or obtaining and providing assistive tools. If that isn鈥檛 possible or effective, the next step is to evaluate a job reassignment.

Conduct is harder to quantify, and employees engage in an infinite variety of misbehavior. Conduct is even more difficult because mental disabilities can contribute to on-the-job conduct problems. A two-step evaluation can be a smart move. First, look at the situation and evaluate whether the misconduct is intertwined with the disability. Is the problem insubordination? Is it a safety violation?聽Is it use of a racist term?聽Is it refusal to clock out when leaving for lunch? Those acts probably don鈥檛 have anything to do with a disability, and employees in protected classes don鈥檛 get a free pass for violating regular conduct standards.
Case law, however, has been developing out of situations where conduct violations are so closely related to the disability that employers may want to take a second look at the issue. The EEOC, which is the federal agency responsible for interpretation and enforcement of federal civil rights laws, has formally taken the position that the law does not protect employees from the consequences of violating conduct standards even when the conduct is caused by the disability.

But some courts are struggling with the whole concept of misconduct caused by a disability, and it is hard to say when or if a standard might be developed. Employers may want to start progressive discipline early for misconduct, and make sure that early in the process they ask employees whether there are accommodations or adjustments that can help the employees meet the conduct standards. There鈥檚 no harm, and can do a lot of good, in asking 鈥渨hy are you doing this?鈥� and 鈥渉ow can we help you stop?鈥澛營n fact, that鈥檚 often an excellent practice to use with all employees.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.