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What if the intended disciplinary
action is something other than
termination, can you still move
forward with disciplinary action
(assuming you learned of the alleged
disability after the disciplinary
process commenced)?
Yes, though the restaurant should
simultaneously commence the required
interactive process under federal
and state law. When an employee’s
conduct warrants discipline other
than termination, the restaurant is not
required to rescind a disciplinary warning
or performance improvement plan upon
learning of the disability. But, in addition
to the discipline, the restaurant should
begin the interactive process—the
informal discussion between employer
and employee to determine if any job
modification will enable the employee to
perform the essential functions of the job.
The restaurant cannot refuse to discuss
a request for accommodation or fail to
provide reasonable accommodation
as a punishment for the performance/
conduct problem.
After
the
employee
requests
accommodation, discussions should
begin with the employee regarding
how the disability may be affecting
performance andwhat accommodation(s)
would assist the employee in improving
Navigating Employee Misconduct
and Disabilities in Restaurants
Dena B. Calo, Esq. and Brittany E. Medio, Esq.
Most restaurants have been faced with the situation where an
employee is exhibiting performance problems or is engaging
in workplace misconduct. When you add a potential disability
to this equation, it becomes much more difficult. How and
when you react can impact your restaurant’s compliance with
both the federal and state laws. It is essential that employers
not jump to conclusions about the underlying reasons for an
employee’s performance deficiencies or misconduct, because
doing so can, on its own, violate state and federal law.
To help maneuver through these tricky situations, here are
some common scenarios that may arise at your restaurant.
During a termination meeting with
an employee, you learn that the
employee has a disability. Can you
still move forward with termination?
Yes. An employer does not have to stop
a termination meeting if an employee
notifies the employer of a disability and
asks for a reasonable accommodation
during a termination meeting. If the
employee’s conduct warrants termination,
and the employee waits to request
reasonable accommodation until after the
termination process begins, the employer
may follow through with termination
without further investigation into the
employee’s disability. In this scenario,
the employee waited too long to request
a reasonable accommodation. Employees
may ask for reasonable accommodation
before or after an employer informs them
of performance problems or misconduct,
but the timing of the request is key. In
this scenario, if termination is warranted
and the restaurant had no knowledge of
the disability, then it does not have to
halt the process upon becoming aware
of the disability. But note: this scenario
and response is dependent upon the
restaurant’s publication and distribution
of a disability accommodation policy.
If there is no such policy, and the
employee has no knowledge of the
process of requesting accommodation,
the restaurant should act on a verbal
request for accommodation as soon as it
becomes aware of it.