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Reasonable Accommodation and Productivity
May 10, 2006
As a reasonable accommodation under the ADA, Robert, a production line worker, asked for, and was granted, 5 months leave for depression. He returned to work following this leave and was able to work without further interruption. At the end of the companyís fiscal year, Robertís productivity was evaluated in the usual manner. The employer compares the production rates of employees for the previous fiscal year and establishes a median level of production. Employees who fall below 25% of the median production level are terminated. For the fiscal year under consideration, Robertís production fell below 25%.
Question: Can the employer terminate Robert for below-average production?
No. To do so would be retaliation for the employee's use of a reasonable accommodation to which s/he is entitled under the law.(53) Moreover, such punishment would make the leave an ineffective accommodation, thus making an employer liable for failing to provide a reasonable accommodation.(54)
Instead, the employer should take into account the fact that Robertís production level was lower than the norm because of his five-month leave of absence. When assessing Robertís performance for the previous year, the company should pro-rate Robertís productivity for the seven months he was actually on the job and assess his productivity on that basis. To do otherwise would be to penalize Robert for taking a reasonable accommodation and would be considered retaliation. Taking this action would also be a denial of reasonable accommodation.
For More Information
- Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
- Contact your regional ADA & IT Technical Assistance Center (DBTAC)
Phone: 1-800-949-4232 (v/tty)
The Southeast Disability and Business Technical Assistance Center (DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant #H133D010207. However, you should be aware that NIDRR is not responsible for enforcement of the ADA For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (TTY/voice).