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Accommodated worker failing? You can terminate

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in Employment Law,Human Resources

You have an obligation under state and federal disability laws to provide disabled employees with reasonable accommodations. But sometimes accommodations don’t improve attendance or performance. Sometimes the disabled employee doesn’t cooperate. In those cases, what are your options?

It all depends on how well you manage the situation. If you carefully track attendance and the employee’s attitude and cooperation, you may finally conclude that no amount of accommodation will satisfy her. Then it may be time to say the obvious—the employee simply can’t rise to your reasonable performance expectations, with or without an accommodation.

Recent case: Anita Garg worked for the U.S. Postal Service (USPS) as a mail sorter on the night shift. Because most mail is processed overnight, those employees are exposed to the most paper dust. Garg claimed the dust was aggravating her allergies. She asked for a transfer to a more desirable shift.

The USPS transferred Garg to a daytime job for seven months, and then placed her back on the tail end of the night shift so she could avoid as much dust as possible. Still, she missed many workdays and didn’t cooperate when her supervisors asked her to get allergy testing. Finally, she lost her job when she ignored their requests to come back or apply for disability retirement.

She sued under the ADA. The 7th Circuit Court of Appeals concluded Garg had shown she couldn’t perform the essential functions of her job, with or without an accommodation. She missed work and didn’t cooperate even when her employer accommodated her. The court tossed out her case. (Garg v. Potter, No. 07-2377, 7th Cir., 2008)

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