Delaware Restaurateur, Quarter 2 2016

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Quarter 2 7
h r t i p s
for the restaurant, the employee, and the
impacted customers.
There are also limited circumstances
where the nature of the employee’s
performance problems or unacceptable
conduct itself is evidence that a medical
condition may be the cause. For
example, consider a situation where a
server with no history of performance
or conduct problems suddenly develops
both—the server has mental and
emotional breakdowns in the restaurant
and becomes belligerent when asked
questions related to the conduct.
This sudden and marked change in
performance and conduct reasonably
suggest that a medical condition may be
the cause of the employee’s performance
and conduct problems. In this situation,
the employee’s performance/conduct
alone is enough evidence for the
restaurant to seek an independent
medical examination. The restaurant
need only document the behavior (e.g.,
obtain statements reflecting the conduct)
to substantiate a reasonable and honest
belief in order to take action.
Practical takeaways:
• Consider implementing a disability
accommodation policy.
• Timing is important when evaluating
employee discipline:
– If an employee waits until after the
disciplinary process begins to ask
for a reasonable accommodation,
then a restaurant is not required
to withhold disciplinary action,
including termination.
– But if the disciplinary action is
not termination, the restaurant
must also engage in the interactive
process upon learning of the
employee’s disability.
• A restaurant can require an employee
to provide medical information or
undergo a medical examination when
it holds a reasonable and honest belief
that a medical condition is negatively
impacting performance and the
employee is therefore unable to perform
the essential functions of the job.
Dena B. Calo, Esq. is a partner at Saul Ewing LLP
and Vice Chair of the Firm’s Labor and Employment
Practice Group and Brittany E. Medio, Esq. is an
associate at the firm. They focus their practices on
Human Resources Risk Management and Labor
and Employment Law. Dena can be reached at
215-972-7104 and Brittany can be reached at
215-972-7125.