Molly Kelley, HR Business Partner at Xenium, and Allison Julander, Marketing Assistant at Xenium, contributed to this post.
Managing employee performance in a considerate, thoughtful, and fair way can be a challenge for employers. When a medical issue, or the suspicion of one, is added to the mix, the process becomes a veritable tightrope walk. Damage to the employee-manager relationship, discriminatory actions, legal battles, and the danger of potentially perceiving a disability that isn’t a factor and thereby putting a perfectly healthy employee under the umbrella of the Americans with Disabilities Act (ADA or ADAAA) are just a few potential results of a misstep.
Myriad concerns and issues complicate these situations. But let’s start with identifying the problem in the first place.
Perhaps a manager notices that an employee’s performance is slipping. Maybe they’ve made comments about wanting to hurt themselves or even commit suicide, though it’s hard to tell how serious they are. Maybe an employee’s behavior has changed, their performance is dipping, or they’re suddenly showing aggression with coworkers. Attention to detail deteriorates suddenly and mistakes arise inexplicably from a consistently solid long-term performer.
Managers should remember at these times that an employee must willfully disclose any specific medical issues or information about themselves prior to it being acted on or responded to by an employer. In most of these situations, the employer is restricted from asking, supposing, suggesting or inferring there may be a disability involved in the performance challenge. In ADA-related situations, the tried and true adage is that no good deed goes unpunished: an employer may have only the best intentions when adjusting an employee’s job duties or hours, but if they act only on a suspicion of a medical issue, the adjustment could be perceived as discriminatory. If the employer chooses to have a conversation with the employee first and begins it by saying something along the lines of, “Hey, listen. You’ve seemed somewhat depressed recently…” or “I think you have ADHD,” the employer is essentially acting like a doctor and diagnosing the employee, which is not an appropriate role. In doing so, in perceiving a disability, the employer essentially perceives the employee as disabled which extends them coverage under ADA whether or not they truly have a disability.
So how do you resolve these issues, if silently adjusting job duties or having a direct conversation about your suspicions of a disability are both out of the question? This is where the tightrope walk begins.
The first necessary step is to prepare for a performance conversation with the employee. Leveraging professional support, either that of an experienced HR professional or attorney, is hugely important. Next, try to stick to the performance related facts of the situation. Take a good look at the performance issues, list them out, and compare them with job description and performance expectations. Go into the conversation with this employee with carefully thought out and non-accusatory questions, such as “These performance issues are really serious. What do you think is causing your mistakes?” or “You have always had solid attendance but have recently missed eleven days in just two months. What has caused your attendance to dip so dramatically?” If there have been issues in the past, approach the conversation with, “Is there anything more we can do to help you?” To focus the conversation on a performance issue itself, try “Is there a challenge with your scheduled hours?”
Until the employee flat out states “The reason I’m having these challenges is __,” the goal is to simply manage performance. Going further risks the employer perceiving a disability and discriminating against someone by treating them differently because of a biased lens through which their actions are being viewed.
However, there’s a risk that comes with the situation of managing performance problems without being aware of the underlying conditions. It’s important to be cognizant and to respond immediately to these issues once disclosed. Ensuring that all members of a leadership team communicate about any disclosure of harassment, ADA, a safety concern, or another issue from any employee—regardless of whether that employee belongs to another department—is vital. The minute that employee tells a representative of the organization or part of the leadership, the company is technically on notice of the concern.
Once the disclosure of a disability occurs and the full reality of a situation may be dealt with, the tightrope walk is not yet over. These are deeply personal concerns to discuss in a work setting and it’s important to consider how the employee feels in the conversation, and what their perspective on the conversation now looks like. After disclosing something personal with a superior, the employee may view that employer-employee relationship differently. It is hugely important that employers take care when choosing who else to disclose this information to, namely on a need to know only basis.
Certain accommodations may also need to be made if requested. In this situation, it is necessary to consult an experienced HR professional or attorney to know what constitutes a reasonable accommodation versus what goes beyond the scope of what can be altered about this employee’s position. Relatedly, it’s not a good idea to promise to grant accommodations prior to them being detailed by a medical professional and the employee. Saying, “Whatever the doctor says, we’ll do for you,” might seem like a comforting way to end what was likely a difficult conversation, but promising changes and accommodations without knowing what the medical provider will say and whether it’s feasible or appropriate for your workspace and this position could pose a problem later.
Most importantly, focus on the health of the relationship between the manager/supervisor and their employee. Navigating the choppy waters of ADA is absolutely possible when accompanied by skilled professional advisors, awareness of legal and professional boundaries and the sincere commitment employers have toward keeping qualified and talented teams feeling supported and engaged.
The staff at Xenium HR contributed to this article. It is intended as information only and is not a substitute for legal advice. Xenium HR is a professional employer organization specializing in strategic HR partnership with small and mid-sized businesses in Portland, Oregon. For more information on human resource consulting or employer programs, contact Xenium HR at 503-612-1555 or visit www.xeniumhr.com.
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The Tightrope Walk of ADA in the Workplace
