On September 3, 2008, the EEOC issued new guidance which addresses how the Americans with Disabilities Act (ADA) applies to a variety of performance and conduct issues in the workplace.  Employers are often faced with the question of how to apply their work rules and standards to employees who are disabled under the ADA.  The guidance is presented in a useful “question and answer” format which covers a number of common situations that can arise when employers need to evaluate employees’ work performance and take corrective or disciplinary action to enforce work rules. 

The guidance reviews relevant provisions of the ADA, including the concepts of “qualified individual with a disability” and “reasonable accommodation.”  Specifically, the ADA protects “qualified” persons with a disability—i.e., those disabled persons who can perform the essential functions of the job with or without reasonable accommodation.  The ADA generally does not limit the employer’s right to define essential functions of the job or to evaluate employees according to consistently applied standards governing performance and conduct.  Most significantly, the EEOC’s guidance affirms that employers have the right to apply the same performance and conduct standards to all employees, including those with disabilities.  However, the guidance also stresses that employers may have to provide reasonable accommodation to assist a disabled employee to meet those standards.  The guidance also explains how and when employees should request accommodation, and how employers should handle those requests. 

In addition to discussing situations regarding the application of performance and conduct standards, the guidance addresses specific issues related to attendance, dress codes, and alcohol and drug use.  The guidance also discusses when an employer can ask for medical information about an employee’s disability when performance or conduct problems arise.  Of course, while the employer has that right to request medical information or require a medical examination when it is “job-related and consistent with business necessity,” an employer may instead choose to focus solely on the performance or conduct problem and take appropriate steps to address them rather than request the medical information or examination.

In and of itself, the EEOC’s guidance does not constitute legal precedent or authority.  However, it does offer a practical reference to employers in an otherwise complex area of legal compliance. This is timely given the new amendments to the ADA just enacted by Congress and signed by the President, which will most likely have the effect of focusing employees’ (and their attorneys’) attention on the expanded protections and rights afforded under the ADA.