ADA worries

I'm looking for suggestions: We have an employee that has had several verbal and then 1 written warning for poor performance. We were going to terminate due to poor performance when he called in. the next day he called in again and stated he has a sleep disorder and fell asleep the prior week while operating one of our trucks. His doctors note didn't mention any disorder just that he would be out of work for 2 weeks. when he returns to work are we okay to terminate him due to poor performance or are we putting ourselves at risk for ADA claims? He hasn't been with the company long enough for FMLA to apply so technically his leave isn't job protected. 


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  • Here is a response from Virginia employment attorney Jonathan Mook, who frequently speaks and writes about the ADA -- tk

    I am one of the editors of the Virginia Employment Law Letter, which has included articles on various requirements of the Americans with Disabilities Act (ADA). In interpreting the statute, the EEOC recognizes that after an employer takes a job action due to an employee’s performance problem, the employer need not undo that action if the employee subsequently tells the employer that the job performance issue arose from the employee’s disability. 

                Thus, if a final decision is made to terminate an employee due to poor performance and that decision has been documented, the employer, consistent with the EEOC’s guidance, need not reverse its decision if between the time the decision is made and the time that decision is conveyed to the employee, the employee informs the employer that he or she has a disability.  In this situation, however, I generally would advise an employer to err on the safe side and address the new information provided by the employee to determine whether or not ADA considerations come into play. 

                That means (1) requesting medical documentation from the employee as to any claimed disability, (2) assessing that information to determine whether it rises to the level of a disability as defined by the ADA, and (3) if it does, whether the employee can be accommodated so that in the future a job performance problem will not arise. 

                In the case of a safety-sensitive position, such as a truck driver, the nature of the employee’s disability (e.g., falling asleep at the wheel) may be such as to prevent the employee from safely performing the job. Such a determination would need to be based upon expert medical opinion. An employer should also consider transfer to a vacant position that the employee is qualified to perform if the employee cannot safely perform his or her existing job.

                As with all employment issues, the assessment of what the ADA requires in a specific situation always involves a detailed factual inquiry and assessment. Additionally, because much of the ADA analysis focuses upon what is “reasonable,” employers generally will need to make a risk assessment as to the strength of the employer’s arguments that an employee cannot do a job, even with reasonable accommodation, versus the employee’s arguments that he or she can. There are no “yes” and “no” answers under the ADA. The analysis always will involve which party has the stronger argument backed by the facts and medical documentation or testimony.

    Jonathan R. Mook
    DiMuroGinsberg, P.C.
    1101 King Street, Suite 610
    Alexandria, Virginia 22314
    (703) 684-4333


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