I have suffered from depressive episodes for a number of years. About a month ago, I started taking a new antidepressant medication that causes me to feel really groggy when I wake up in the morning. After years without attendance problems, I've gotten to work late several times in the past month -- and now my supervisor has told me that I'll receive a written warning if I'm late again! Can he do this? I thought employers can't discriminate against employees who have disabilities.
Whether your employer can discipline you for performance or attendance problems stemming from your disability (or, in your case, the medication you take for it) depends on all the facts. You are correct that an employer may not discriminate against an employee with a disability. At the same time, however, an employer doesn't have to hire or retain an employee who can't perform the job's essential functions, with or without an accommodation. And employers are not required to lower their production or performance standards for employees with disabilities.
Here are some key facts to consider in determining whether your employer may discipline you.
Does your employer know about your disability? Some disabilities are obvious: An employer would have a hard time arguing that it didn't know an employee had a disability if the employee uses a wheelchair or is blind, for example. Depression is not an obvious disability, however. If you have not told your supervisor about your depression and the medication you take, he may have no reason to attribute your tardiness to a disability.
Have you requested a reasonable accommodation? If your employer knows about your disability, have you explained that you need an accommodation for the effects of your medication? The law doesn't require employers to know how every disability affects every employee, nor to understand the side effects of all possible medications. If you need an accommodation to perform the essential functions of your job, it's your obligation to tell your employer.
What are the essential functions of your job? For many positions, allowing an employee to start work later is a simple accommodation that's free and doesn't create any problems for the employer. This isn't true of all jobs, however. If, for example, you are the only office receptionist, you need to be at your desk when the office opens. In contrast, if you work an early shift at a call center, it should be a simple matter to switch you to a later shift.
If your employer knew about your disability, you requested an accommodation, and the accommodation would allow you to perform your job's essential functions, then your supervisor should not discipline you for your absences. Use this opportunity to make clear that the medication you take for you disability is causing you to arrive late. Ask again about accommodations, and explain that disciplining you for your tardiness without providing an accommodation is unfair and illegal.
However, if you have keep your condition a secret (as is often the case with hidden disabilities), it's time to discuss it with your supervisor. Explain your condition, the effects of your medication, and your need for an accommodation. (It might help to offer to provide a note from your doctor, as well.) Your employer isn't legally required to "take back" discipline imposed before it was aware of your disability and need for accommodation. However, many employers won't discipline an employee in this situation, recognizing that it's unfair to penalize an employee for the effects of a disability.