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Accommodation failing? Focus on performance

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in FMLA Guidelines,Human Resources

Employers must reasonably accommodate disabled workers so they can perform the essential functions of their jobs. But what should you do if you have made accommodations and they don’t seem to be working? Keep the focus on performance. Is the employee accomplishing reasonable goals? If not, you can and should discipline him despite his disability.

Recent case: Ernie worked in information technology for Duke Energy. The company had a work-from-home plan for employees who could effectively perform their jobs remotely. Ernie signed up.

However, his supervisor grew increasingly frustrated with Ernie’s performance, refusal to come in for meetings and inability to keep set hours while working from home. She prepared a performance review that focused on the problems and warned him that he might not be able to keep his remote work plan if things didn’t dramatically improve.

Shortly after, Ernie went out on FMLA leave. When his leave was up, he got his doctor to certify that he needed to continue working from home because he could not sit for more than 30 minutes at a time. While it was considering the request as a reasonable accommodation, HR asked Ernie for information on ergonomic chairs and tables that might accommodate his needs. He never responded.

Duke Energy then revoked his work-from-home privileges and warned he would face termination if he didn’t come into the office. He failed to appear and was fired.

He sued, alleging retaliation for taking FMLA leave and failure to accommodate.

But Duke Energy showed that the real reason for the termination was Ernie’s performance and insubordination in failing to show up—not his FMLA use or disability. His case was dismissed. (Baldwin v. Duke Energy, No. 3:12-CV-00212, WD NC, 2013)

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