What should an employer do if an employee requests an accommodation for the first time in response to counseling or a low performance rating?

When an employee requests a reasonable accommodation in response to the employer’s discussion or evaluation of the person’s performance, the employer may proceed with the discussion or evaluation but also should begin the interactive reasonable accommodation process by discussing with the employee how the disability may be affecting performance and what accommodation the employee believes may help to improve it. Employers cannot refuse to discuss the request or fail to provide a reasonable accommodation as punishment for the performance problem. If a reasonable accommodation is needed to assist an employee in addressing a performance problem, and the employer refuses to provide one, absent undue hardship, the employer has violated the ADA.

The employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of disability, whether and to what extent the disability is affecting job performance, and what accommodations may address the problem. The employer may also suggest possible accommodations.

The employee may need reasonable accommodation, for example, to enable him to meet a production standard or to perform an essential function. Where a lower performance rating results from an inability to perform a marginal function because of the disability, the appropriate accommodation would be to remove the marginal function (and perhaps substitute one that the employee can perform).

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer:

• tolerate or excuse the poor performance;

• withhold disciplinary action (including termination) warranted by the poor performance;

• raise a performance rating; or

• give an evaluation that does not reflect the employee’s actual performance.

An employer may need to determine what happens to an employee while it is handling a request for accommodation. For example, an employer might require an employee to perform only those functions of the job for which accommodation is not needed while processing the request. In other situations, it may be appropriate for an employee to take leave.