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The Fairness Factor - Do disability laws keep bad workers on the job?

by Jason Roop

The Fairness Factor - Do disability laws keep bad workers on the job?
Jason Roop
Inside Business
Monday June 26, 2000

Reprinted with Permission

As more of the approximately 42 million Americans with physical and mental disabilities enter the work force, managers increasingly face such sticky situations.

In fact, some employers have been reluctant to hire people with disabilities because they're afraid they won't be allowed to discipline them if necessary. That's simply not true, say workplace experts and advocates for the disabled. A disabled employee is subject to the same rewards and punishments as any other worker.

But there are some things managers must contend with before firing someone with a disability. There is a complex set of laws and regulations designed to protect disabled employees from being fired for who they are, not for the quality of work they do.

How a legal and ethical termination of a disabled worker is carried out is something of a paradox, say labor attorneys and human-resources professionals. On one hand, you must treat disabled employees like everyone else. On the other hand, they're simply not everyone else.

The biggest difference stems from the Americans with Disabilities Act of 1990, which was designed to eliminate barriers and outline rights for the disabled.

"If you have an employee who is disabled under the ADA, then you cannot discriminate against that employee," says Mike DeCamps, an attorney who specializes in employment law for Sands Anderson Marks & Miller.

That's not to say ADA orders managers to discriminate for the disabled, either, DeCamps adds, but "the hoops that you have to go through are a little more than just the ordinary situation."

Those hoops make it tricky to decide whether a disabled employee should be fired, even if the manager has good reasons to do so. It can be helpful to break down the decision process into five general areas, according to the Alexander Hamilton Institute Inc., which publishes personnel guides for managers.

1. Accommodations - Employers can't fire a disabled employee unless they've made all the legally required, reasonable allowances an employer must make for qualified employees who are disabled.

Such accommodations, which are meant to level the playing field for disabled employees, could include modifying work schedules, installing new equipment and adjusting personal-leave policies. Accommodations do not include lowering standards, creating a new job or doing anything that would cause undue hardship to the company.

Unfortunately, the law doesn't clearly define what constitutes "reasonable accommodations," DeCamps says. That's where human-resource managers and legal counsel can help, he adds, because "the accommodation area is the biggest danger zone."

To be sure the dismissal passes legal and ethical muster, employers must be confident the disabled employee they're firing isn't performing well even though all the necessary accommodations have been made.

2. Alternatives - Before firing a disabled employee, the manager might want to consider whether the employee could do well in another position at the company. It's not mandated, but this could be considered a good business practice, according to AHI.

Or maybe you should let the troublesome employee try again, suggests Lisa Willis Johnson, chairwoman of the workplace diversity committee for the Society for Human Resource Man-agement, a Virginia-based human-resources trade group representing about 100,000 companies. Considering the tight labor market, many companies tend to give second chances to all employees, she says.

But it's important to be sure that giving an employee another shot doesn't violate the company's past practices or shake the integrity of the organization. The second-chance option can't be seen as special treatment for the disabled employee, Johnson says: "Then you have reverse discrimination, which is equally demoralizing."

3. Performance - If you fire someone, it should make sense from the standpoint of job performance. One of the fairest ways to gauge that performance is through regular evaluations.

Start with a well-written job description, DeCamps recommends. If expectations are clear from the beginning, then the dispute is minimized in the end. Such job descriptions also can help guard employers against lawsuits if employees become disabled after they're hired and can no longer perform the job they were originally hired to do.

Performance evaluations should be documented, of course, DeCamps says. In jobs in which production is an important criterion, employers can look at the quantity of work. In other jobs, job evaluations should be sought from individual supervisors.

In the end, DeCamps says, it's up to the employer to determine whether the essential function of the job has been performed.

4. Policy - Before firing an employee with a disability, managers should be certain that they've followed the same personnel policies that are used for other employees.

For example, a policy may stipulate that warnings are given before termination. That may be followed by suspension. The key is to have solid policies in place and in practice for everyone, Johnson says.

5. The Basics - When all is said and done, AHI advises managers to ask themselves whether their decision is an example of "fairness, honesty and good faith."

DeCamps says it's like any other firing decision. "The bottom-line advice is to learn as much as you can about the specific factual situation before you make a snap decision to either retain them & or terminate them."

It can be difficult, admits Johnson, who also is director of human resources and administrative services for the Mid-Ohio Regional Planning Commission.

"It's always hard because youre impacting that person's life immediately," she says.

And it's especially easy to feel guilty if the employee has a disability. But managers need to feel confident. "You've got to go through the whole situation in your head," she says, "and feel comfortable that there was no other way around this other than termination."

Delivering the news When informing a worker that he or she is dismissed, be firm but caring, advises the Alexander Hamilton Institute Inc. The general steps to a termination interview with a disabled employee are the same ones you should follow for any other employee:

1. Be direct. Launching into small talk will not put employees at ease. They should have a general idea from the start that they're about to be fired. 2. Explain why. Don't be brutal or vague. Be specific in explaining why they're being fired.

3. Listen. Get employees to talk, too. Then listen - actively. It's important to understand what they're telling you.

4. Measure the reaction. 5. Finalize the decision. Don't suggest that employees can salvage their jobs by coming up with a solution. The termination decision has been made.

It's natural to feel sympathy for someone you must fire, says Lisa Willis Johnson, chairwoman of the workplace diversity committee for the Society for Human Resource Management. But don't get wrapped up in guilt.

Managers should remember that dismissed employees have brought the termination upon themselves, Johnson says.

Johnson suggests managers remind themselves that "through [the employees'] action or inaction, they have brought about this result. And I'm the person that has to process that result."