Employee Performance and Disability: A Short Course on Evaluation Under the ADA

Act I:  The Problem

Jason is a veteran middle school math teacher who has been in the classroom for more than twenty years. He has never been a strong teacher. The principal who worked with him for the bulk of his twenty-year teaching career was aware of Jason's weaknesses, but failed to document them as required by the state- and school district-required teacher evaluation systems. Indeed, annually Jason received "satisfactory" indicators in all evaluation domains, and in each sub-domain, with no commentary included whatsoever.

The school district assigns a new principal, Yvonne, to Jason's school. Yvonne's doctoral thesis focused on systems for improving teacher evaluation. For several years, although a young administrator, Yvonne has served on the school district's teacher evaluation system committee, reviewing and refining teacher evaluation instruments and analyzing teacher performance data.

Once she arrives at the middle school, Yvonne immediately recognizes Jason's deficiencies. She observes his classroom performance and makes recommendations for improvement. Jason ignores those suggestions. When Jason fails to respond favorably to her informal attempts to assist him, Yvonne meets with Jason to develop, jointly, a performance improvement plan (PIP). Jason attends two sessions with Yvonne, during which she reviews with him: (1) observations of his classroom that she and another administrator have completed; (2) several complaints filed by parents of students in his classroom; (3) standardized testing data; (4) his lesson plans; and (5) excessive student disciplinary referral data from his class. At the end of the second session, Yvonne and Jason both sign the PIP. However, as Jason leaves Yvonne's office, he mutters (under his breath, but loud enough that Yvonne hears) "This is BS. I've always been fine before."

The following week, Jason calls in sick to work on three consecutive days. When he returns to the middle school, he presents Yvonne with a note from a psychologist. The note advises that Jason is suffering from "anxiety, depression – workplace pressures." Yvonne picks up the phone and calls the school district's Human Resources Director, Sharon.

Act II:  The Solution?

Increasingly, school district human resources professionals face medical diagnoses from employees in response to performance improvement plans, corrective action, and even discipline.  Often their initial instinct is to abort the improvement plan or corrective action and/or un-ring the discipline bell.  Not so fast. While the HR professional and the school district administration must be mindful of their obligations under applicable law, they are not proscribed from evaluating the performance of the employee who asserts a disability or any related legal protections.

Our suggestions?  Two-fold. 

First and foremost, engage in the interactive process required by the ADA to determine if the employee, with or without accommodation, can perform the essential functions of his job.  If warranted, provide reasonable accommodation(s) to the employee.  Second, continue to monitor and document the employee's performance under the growth plan and, if necessary and consistent with the accommodations identified for the employee, discipline him.

Presumably Jason has a "disability" within the meaning of the ADA – anxiety and depression -- regardless of their underlying causes.  Indeed, the ADA includes in its definition of discrimination failing to accommodate known mental limitations that affect major life activities (which include work). Whether caused by workplace stress or something at home, Jason likely qualifies for the protections under the ADA.  If Yvonne and Sharon have reason to believe the diagnoses are suspect, the school district may request information from a health professional sufficient to: (1) describe the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and (2) substantiate why the requested reasonable accommodation(s) is needed.

Yvonne and Sharon – and Jason -- must engage in good faith in what the ADA calls "the interactive process."  Initially, Jason must provide sufficient information to put the school district on notice of his need for accommodation(s).  Pursuant to ADA regulations, the process should "identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."

The accommodation(s) must be reasonable under the circumstances, and the school district does not have to offer accommodations that the law would deem to create for the district an undue hardship.  What constitutes an undue hardship may include a financial component.  For instance, having a second teacher accompany Jason all day likely would not be a reasonable accommodation.  On the other hand, providing periods of limited professional coverage for Jason during extremely stressful times, considering intermittent leave in conjunction with his Family Medical Leave Act benefits, or re-structuring his teaching assignment may be reasonable.  Whatever the result, Yvonne and Sharon should document the accommodation(s) the district provides in response to the interactive process.  If the district offers Jason reasonable accommodation(s), and he refuses the accommodation, he may no longer be considered a qualified individual with a disability.

Likewise, the ADA does not preclude the school district from accurately evaluating Jason's performance if it is otherwise complying with the law.  And the district may discipline him, including terminating his employment, so long as it does not do so based on his disability or for asserting rights under the ADA. Yvonne should continue to monitor and document Jason's performance under his PIP once the accommodation(s) is in place.  Any evaluations should be faithful to the district's employee evaluation system, and any discipline should be otherwise consistent with the district's employment policies.

The ADA is a complex law.  As with many HR issues, Yvonne and Sharon are well-advised to confer with the school district's legal counsel as they navigate issues regarding Jason's employment needs.

If you have any questions, please contact Sands Anderson's Employment Law attorneys.