Poor performance alone does not require employer to investigate possible disability

Previously, the employee had been given a written warning, provided remedial training, and placed on an improvement plan. Throughout her various levels of discipline, the employee never once indicated that her performance issues were caused by her disabilities. She only claimed this connection after being fired. In her lawsuit, she argued that the company violated the ADA because it failed to engage in the “interactive process” after knowing about her conditions. In rejecting her argument, the court stated that it is the employee’s obligation to notify the company that her poor performance was related to a disability. In other words, an employee must inform the employer of both the disability and that the disability caused her performance limitations. Because the employee in this case did not do so, the ADA was never triggered. (Kelley v. Amazon.com, Inc., ED Wash, Nov. 2013).

Tips: An employer does not need to make a leap and guess whether a disability affects performance, as this case shows. However, if you know an employee has a disability and it’s reasonable to believe that the disability is causing a performance problem, there are two situations where you may have an obligation to be proactive. The first situation is if the disability is a mental disability that would likely make it difficult for the individual to ask for accommodation (e.g., a developmental disability). The second situation is if you are an affirmative action employer with federal contracts; if so, then you must ask the employee whether his or her performance problems are related to the known disability. If either of these situations occur, then you should explore accommodations through the interactive process. Check out these Vigilant Legal Guides for more information: “At a Glance: Americans with Disabilities Act (ADA)” (6016); and “ADA: Reasonable Accommodation and the Interactive Process” (1078) or contact Vigilant to discuss flat fee unlimited counsel with our attorneys on this issue.