PIHRA Scope - Fall 2008 - (Page 22) DISRUPTIVE or DISABLED? Employee Misconduct May Be Protected Under Laws Against Disability Discrimination 2008 By James J. McDonald, Jr. PIHRA Fisher & Phillips LLP Conference © amorphis. Image from BigStockPhoto.com. Speaker FEATURE the Americans with Disabilities Act and California’s Fair Employment and Housing Act prohibit discrimination in employment based on disability. But do these laws protect employees who fail to show up for work, or steal, or sleep on the job, or operate heavy equipment knowing they are not fit to do so, or throw things and lash out at supervisors? The law seems to be moving in this direction. Until recently, employers could discipline employees for misconduct, even if it is connected with a disability. The Equal Employment Opportunity Commission maintains that an employee may be disciplined for violating a workplace conduct standard if the misconduct resulted from a disability, provided that the conduct standard is job-related for the position in question and is consistent with business necessity. The U.S. Court of Appeals for the Ninth Circuit has taken a different view, however. In Humphrey v. Memorial Hospitals Association (2001), a medical transcriptionist with obsessive-compulsive disorder repeatedly failed to arrive at work on time. Among the accommodations offered her was 22 PIHRAScope Fall 2008 Both a flexible start-time arrangement. She nevertheless continued to miss work. She then asked to be able to work from home. Her request was denied on account of her absenteeism and tardiness. She eventually was terminated, and she sued under the ADA. The Ninth Circuit upheld her claim. It rejected the employer’s argument that she was not “qualified” for her job because she could not show up for work on time. The court observed that “regular and predictable attendance is not per se an essential function of all jobs.” It went on to find that either of two potential reasonable accommodations might have enabled her to perform her job—a leave of absence or allowing her to work from home. The court maintained that “working at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause an undue hardship for the employer.” The court went on to hold that the plaintiff’s termination was unlawful if her absenteeism was caused by obsessive-compulsive disorder: “For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” The court further noted that the ADA authorizes discharges of employees for misconduct resulting from a “disability” only where alcoholism or illegal drug use are involved. The Humphrey court suggested an additional exception where “egregious and criminal conduct”
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