Ask the Attorney: ADA-protected underperformer, contract terminations and more
In this edition of Ask the Attorney, employment lawyer Nancy Delogu responds to readers questions about disabilities – what’s protected, what’s not – and how to terminate an employment contract.
Have we made enough allowances for this underperforming, but medically challenged, employee?
Q: “We have an employee who has been prescribed medications for her back and to help her sleep. Over the last year we have had a few incidents where she periodically called in sick for three or four days, has fallen asleep on the job (at her desk), has slurred speech and her writing is not legible. Her work performance is truly suffering. She has admitted the prescriptions were too much for her, and she has seen a doctor to help her change the dosage. We have talked with her about this many times, and we have offered to help her in any way we can.
“Unfortunately, it doesn’t seem to be getting better. We think she needs more help, but we also know we can’t make her get it. Six years ago we had a similar situation. She is a recovering alcoholic, and we know this is considered a disability. We want to do the right thing by her, but she needs to do her part. We are considering letting her go.
“Can we do this without any repercussions? We have documented everything with notes to her file. She also has a couple of written warnings that state we could terminate if this were to happen again, and it has.” – Jodi, Massachusetts
A: As you recognize, workers who have alcoholism are protected by the Americans with Disabilities Act and similar state laws from discrimination on the basis of their status as alcoholics. They are not, however, immune from performance and behavior expectations, and workers who come to work under the influence, miss work because of their consumption of alcohol, or engage in other alcohol-related conduct prohibited by your policy can be subjected to performance counseling and discipline on that basis.
Similarly, the Americans with Disabilities Act limits an employer’s right to ask about an employee’s use of medications, or to take employment action based on an employee’s lawful use of prescribed medication, even if the individual is not disabled. Employers can generally prohibit workers from working if their use of a medication poses a “direct threat” to themselves or others, and while that is a legal term worthy of a much more detailed analysis, it seems you don’t think your employee’s condition is dangerous even as it negatively impacts her employment. (An individual’s current illegal use of drugs is also a lawful reason for taking adverse action under the Americans with Disabilities Act.)
I cannot tell whether you think this employee is coming to work impaired by alcohol, suffering the aftereffects of alcohol use, impaired by her use of prescribed medications, or perhaps a combination of the three. Ultimately, if she not violating your policy by coming to work under the influence of alcohol or illegal drugs (which you might witness, or confirm through testing), then you have a performance management issue, rather than a policy violation problem. It is appropriate to address those concerns through performance management, and it sounds as though you have notified her of the substandard work and offered her assistance in addressing those shortcomings, yet the concerns persist. Although you are aware of her history of alcoholism, you describe current examples in which her current performance is inadequate. In these circumstances, given the continued substandard performance, termination of employment may be the inevitable outcome.
How do we legally terminate an employee contract?
Q: “An employee’s contract terms include that if either party decides to terminate the contract, a 30-day notice must be given. The employee turns in their 30-day notice as the terms of the agreement states, but the employer doesn’t honor the 30-day notice, telling them the notice won’t need to be fulfilled, making the employee’s last day effective immediately. Does that make the employer obligated by the terms of contract to pay the employee for the duration of notice given?” – Lauren, North Carolina
A: Contract interpretation is notoriously persnickety, and I and any other attorney would understandably hesitate to opine on any particular contractual provision without actually seeing the entire contract and reading the language in context. State and federal law also play a role, and where the contract is in conflict with the law, it is fair to assume that the contract will not be enforced as written, if at all.
With all of those caveats, and without knowing whether the employee would be able to step into new employment immediately, however, I think an employee who gave 30 days’ notice as required by contract but who was told to depart immediately might reasonably claim to be entitled to wages for the remainder of the 30-day period, as it sounds as though the employee was acting in accordance with the agreement while the employer perhaps was not.
Whenever drafting a contract for employment, it is best if the parties spend a little time imagining and planning for their goal – which is that the employment will be successful for both parties and continue through the end of time – but also, more realistically, that the employment will one day come to an end, and plan for that outcome. Addressing the terms of a contract expiration clearly will help avoid the likelihood of a dispute arising that will be expensive and unpleasant for both parties.
Must we make accommodations in the case of left- or right-handedness?
Q: “Our office is set up for someone who is right-handed. It would be impossible to change our patient rooms to a left-handed approach. How do we communicate this to a new clinical person that might be applying?” – Mary Lynne, Minnesota
A: Well, I don’t believe that being left-hand dominant is a disability, so arguably you can say whatever you would like to individuals whom you observe to favor their left hand in the hiring process. Certainly many left-handed persons have had to learn to work around systems designed for right-handed individuals and while the setup you describe may not be ideal, it’s probably also not something that would warrant a decision not to hire a left-handed individual.
I don’t know that you need to communicate anything to the individual, although you may want to provide a tour of the space as part of the hiring process. All that said, a search of the internet suggests that 10% of us are left-handed, so I am surprised that all of your patient rooms were designed this way and doubt that it would be truly impossible to modify them.