When disciplining, focus on problems unrelated to FMLA or ADA disability

Disabled employees may take FMLA leave, and they may be entitled to additional accommodations. That doesn’t mean employers have to hold open their jobs indefinitely or ignore performance problems unrelated to the disability.

You don’t have to fear being sued for ADA or FMLA violations just because you discipline a disabled person. Just as with any other employee, you can discipline if you focus on the tasks not completed and the rules broken.

When it comes to attendance infractions, carefully document tardiness and absences that are not related to the employee’s disability or serious health condition.

Recent case: Glenn Bass is morbidly obese. His condition caused frequent absences from his job at Lockheed Martin, and he sometimes didn’t complete assigned projects. The company allowed him to take considerable time off to deal with his disabilities. It never counted that leave as unexcused or toward his tardiness count.

In fact, Bass took an entire year off to enroll in a weight loss program, using 12 weeks of FMLA leave, disability leave, vacation time and unpaid personal leave. He still couldn’t return to work and was approved for another two months off. Then he returned to work.

Shortly thereafter, Lockheed Martin implemented a reduction in force, and Bass was one of the first to go. The company said it terminated him because he was slow to complete projects and was frequently absent for reasons not related to his medical problems.

Bass sued for retaliation and discrimination. He introduced evidence that a supervisor had spoken with his mother while he was on leave. She recounted that the supervisor told her that the company had been cooperative in the past in accommodating Bass’ health problems, but wasn’t “going to do that anymore.” Bass alleged that those comments were direct evidence of retaliation and discrimination.

The 11th Circuit Court of Appeals disagreed. It said that, in context, the statements didn’t show discrimination. Bass got all the leave he was entitled to—and more. He wasn’t fired for using that leave, but for unrelated poor performance and poor attendance. (Bass v. Lockheed Martin, No. 08-10549, 11th Cir., 2008)