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delawarerestaurant.orgQuarter 2
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that performance. But remember that
the process is interactive, meaning that
the restaurant employer, itself, may also
suggest possible accommodations that
would allow the employee to perform
the job. An employee is entitled to
reasonable accommodation(s), not the
precise accommodation(s) that he/she
wants. This back and forth exchange
of information between restaurant and
employee is an important part of the
determination of whether the employee
will be able to continue performing the
essential functions of the position with
or without accommodation.
Can a restaurant ask an employee
with a known disability whether they
need a reasonable accommodation
when discussing performance or
misconduct problems?
Yes, though there may be a better
approach. An employer may ask an
employee with a known disability who
is having performance or conduct
problems if he or she needs a reasonable
accommodation. For example, the
employer knows that an employee has
bipolar disorder that was previously
controlled by medication. Currently, the
employee is failing to appear regularly
for shifts, exhibiting erratic behavior
when appearing at work, and customers
are complaining about the employee’s
service. While the ADA permits the
restaurant to approach that employee
and ask if an accommodation is required,
this approach may expose an employer to
a “perceived as” disability or harassment
claim (assuming that the employee
believes that he/she is not disabled but
is being treated by the employer as if he/
she has a disability). Employees who are
perceived as disabled are protected by
the ADA, even if they are not currently
suffering from an actual disability
defined by the ADA.
The most practical way to address this
situation initially would be to approach
the employee and ask if help is required,
without reference to the disability. So,
in the previous example, the employer
should approach the employee, address
the complaints and witnessed conduct,
and ask if the employee needs assistance or
help. There is no need to address the prior
bipolar diagnosis. This approach allows
the employee to request accommodation
if it is required, without the employer
raising that issue and exposing itself to the
risk of a disability or harassment claim.
If the employee does not seek
accommodation after being approached
in this manner, then the employer is
free to proceed down the performance
path. Generally restaurants are given
wide latitude to develop and enforce
conduct rules. An employer may hold the
individual to the same conduct standards
that it applies to all other employees,
disabled or not. Even if the disability
causes the violation of a conduct rule,
an employer may discipline an employee
if the conduct rule is job-related and
consistent with business necessity and
other employees are held to the same
standard. So long as all employees are
disciplined consistently for similar
violations of conduct rules, there will be
no violation of the ADA or Delaware law.
Can a restaurant require an
employee with performance or
conduct problems to provide
medical information or undergo a
medical examination?
Yes. The ADA permits an employer to
request medical information or order a
medical examination when such a request
is job-related and consistent with the
restaurant’s “business needs.” An employer
must have a reasonable and honest belief of
the need for a medical examination based
on objective evidence that an employee is
unable to perform an essential function
of the job or poses a “direct threat” to
himself or others because of a medical
condition. Similarly, Delaware law allows
an employer to request an employee to
undergo a medical examination for the
purpose of determining the employee’s
ability to “safely and satisfactorily”
perform their duties.
When confronted with a disabled
employee with a performance or
conduct problem, the best and most
practical first step is to seek medical
information from the employee’s
medical provider supporting the
disability. When accommodation has
been sought, the employer can also seek
medical certification from the employee
identifying the functional limitations
creating the need for accommodation.
If the submitted documentation is
insufficient, unclear, or if the employer
believes it needs additional information
that is not being provided by the
employee’s medical provider, then the
employer may seek its own medical
examination of the employee. By
gathering this information, the restaurant
can collect as much information as
possible about the employee’s limitations
and come to the best possible solution
“SO LONG AS ALL EMPLOYEES ARE DISCIPLINED
CONSISTENTLY FOR SIMILAR VIOLATIONS OF
CONDUCT RULES, THERE WILL BE NO VIOLATION OF
THE ADA OR DELAWARE LAW. ”