My Disability Made Me Violate Company Policy! Why Failing to Seek Professional Help for Mental Health Issues Could Cost You Your Job.

My Disability Made Me Violate Company Policy! Why Failing to Seek Professional Help for Mental Health Issues Could Cost You Your Job.

By Alia Derrick, Managing Attorney and Certified Mediator at Derrick Law

Federal law prohibits employment discrimination (e.g., adverse actions such as termination, discipline, demotion, etc.) against qualified individuals with disabilities. The laws include the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, and the Americans with Disabilities Act Amendments Act of 2008 (collectively referred to as “ADAAA” or “federal law”). Some common disabilities —i.e., mental and physical impairments— include, but are not limited to, autism, intellectual disability, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, schizophrenia, cancer, cerebral palsy, diabetes, epilepsy, and multiple sclerosis and muscular dystrophy. Under federal law the job applicant or employee (collectively “employee”) with a disability must be qualified, (i.e., must be able) to perform the essential functions of the job, with or without reasonable accommodation to the work environment, for example. However, what happens if the employee’s disability causes or contributes to misconduct in the workplace? Does federal law still protect that employee from discipline or, even worse, termination? The answer, with one very limited exception, is no, it does not.

Employers have the right, and are generally given wide-latitude, to develop, apply, and uniformly enforce, on all employees, job-related requirements and conduct standards that are consistent with business necessity. This means that employers may discipline employees for violating conduct rules such as, but not limited to, prohibitions against violence, threats of violence, stealing, insubordination, property destruction, safety violations, inappropriate or offensive language, emails, or gestures, and on-the-job drinking or drug use. Even if the employee’s disability causes or contributes to the misconduct, the U.S. Equal Employment Opportunity Commission (“EEOC”), the federal administrative agency charged with enforcing the federal law, makes it clear that an employer need not withhold discipline or termination of an employee who, because of a disability, violates a conduct rule. On the contrary, an employer may discipline that employee for engaging in the misconduct so long as the employer would impose the same discipline on an employee who has no disability. Likewise, in most federal courts throughout the US, including in Texas, disability-related misconduct is not protected. As a result, an employee’s assertion that “my disability made me do it,” for example, could still cost the employee his or her job.

Even the limited exception that results from a reasonable accommodation may, at times and in certain instances, prove insufficient to excuse an employee’s disability-caused violation of a uniformly applied company conduct rule. A reasonable accommodation may be all that is needed to eliminate misconduct. However, an employee’s accommodation request is ineffective if the employee waits until the misconduct counseling or discipline session to inform the employer for the first time that the disability causes or contributes to his or her misconduct that violates company rules. Why? Well, the protections of the ADAAA are not retroactive which means the employer may still discipline the employee for the misconduct he or she committed prior to notifying the employer of the disability or its relevance or contribution to the misconduct. Consequently, if the appropriate disciplinary action for the misconduct is termination, according to EEOC, the ADAAA does not require the employer engage in further discussion about the employee’s disability or request for reasonable accommodation. Only if the discipline is something less than termination, is the employer required to find out whether a reasonable accommodation could help correct the conduct problem or help the employee avoid future misconduct. If no reasonable accommodation is available or the employee’s misconduct persists despite the reasonable accommodation, the employee may be disciplined.

Ultimately, since employees with disabilities can be disciplined and/or terminated for their disability-caused misconduct, it is imperative that, rather than rely solely on a request for a reasonable accommodation, employees take ownership of their own work future and not wait to seek the professional help they need.

By proactively seeking, and continuing, professional medical and prescriptive help, employees should be able to:

  1. more effectively control their workplace behavior;
  2. greatly reduce or even eliminate certain disability-related misconduct; and
  3. decrease the likelihood of losing their job due to disability-induced misconduct.

To ensure compliance with these or similar federal employment laws or for assistance with questions concerning them, contact Alia Derrick at aderrick@dlgam.com or visit the Derrick law website at www.dlgam.com.

2 See the EEOC’s Guidance on The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.

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