Can we discipline an employee for tardiness related to a disability?

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Question:

Our chain of stores has a strict policy about breaks: Employees get two ten-minute breaks during a shift, as well as half an hour for lunch. One of our employees, who works as a cashier and a shelf stocker, has received two verbal warnings about taking extra breaks or extending her breaks beyond ten minutes. It happened again this week, and I sat down with her to give her a written warning. This is a serious disciplinary step; after another infraction, she could be fired. She told me that she is diabetic, and that she needs more frequent breaks (and sometimes longer breaks) to use the bathroom, eat, and test her insulin levels. This makes sense, and I think we can figure out a way to allow her the time she needs. But what's our obligation regarding discipline? Should I still give her a written warning? Should I rescind the earlier verbal warnings? 

Answer:

Discipline for employees with disabilities can be confusing, because it represents the intersection of two important principles underlying the Americans with Disabilities Act (ADA).

On the one hand, employees with disabilities are protected from discrimination only if they are able to perform the essential functions of their jobs. Employers aren't legally required to lower performance standards or production quotas for employees with disabilities. On the other hand, employers also have a legal obligation to provide reasonable accommodations for employees with disabilities, as long as it doesn't create an undue hardship. So, when an employee's performance or conduct is falling short because of his or her disability, it can be tough to figure out what to do. 

What you should do going forward is pretty clear: Your employee has a disability, and your company can provide a reasonable accommodation that will allow the employee to do the job, without undue hardship. Under the ADA, you are legally obligated to make this accommodation. 

What to do about the discipline already imposed or planned is a bit more complicated. Once you learn that an employee's workplace problems are related to a disability, your legal obligation to make reasonable accommodations kicks in. This means that you shouldn't give the employee a written warning, as you now know that the underlying conduct of taking extra and extended breaks is due to a disability for which you can provide an accommodation. 

As for the prior discipline, your company is under no legal obligation to "undo" these earlier actions. Your responsibilities under the ADA are triggered only when you have knowledge that the employee has a disability. You aren't required to guess or ask the employee whether a disability might be contributing to what sounds like a fairly common problem. However, just because you have a right to keep those disciplinary actions on the books doesn't mean you should. It's hard to see how this is "fair" to the employee, given that her earlier problems were directly caused by her disability. You've now come up with a plan to alleviate these problems. The most enlightened course of action would be to give the employee a clean slate, and allow her to show what she can do when her disability is properly accommodated. 

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