Must an Employer Ask If a Disability is Causing Poor Performance?

By Eric B. Meyer

You’ve got an employee with performance issues. Big time!

Initially, you put her on a series of performance improvement plans. But, that doesn’t result in — oh, what’s the word I’m looking for? — improvement.

So, you fire her.

Ah, but here’s the little wrinkle for today’s post.

Why a federal court said “no”

The poor performer experienced frequent migraine headaches and struggled with pain and other symptoms caused by endometriosis. As a result of these conditions, she frequently requested medical leave under the Family and Medical Leave Act, which you afforded her.

Given the poor performer’s medical issues, before firing her, did you have an obligation to engage in an interactive dialogue with her, consistent with the Americans with Disabilities Act to determine whether her health issues caused her performance issues?

According to this recent federal court decision, the answer is no. Make that, hell’s no!

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It is undisputed that Plaintiff never notified Amazon of a possible connection between her performance problems and her disabilities. As a result, Amazon had no reason to know that a performance-related accommodation may have been in order. It is further undisputed that Plaintiff had multiple opportunities to discuss a possible connection with Amazon while she was being counseled about her deficient performance. This is not a case in which the employee had an insufficient opportunity to request a reasonable accommodation.”

The EEOC has said the same thing

But, don’t just take the court’s word on it, the U.S. Equal Employment Opportunity Commission would tell you the same darn thing. (The federal court cited this in its opinion).

But, a word of caution: if an employee with performance issues has a disability of which you are aware, then you may inquire whether the employee needs a reasonable accommodation.

In fact, you must provide a reasonable accommodation to an employee with a disability who needs one to discuss a performance or conduct problem.

Ultimately, however, if an employee can’t performance the essential functions of her job with or without reasonable accommodation, then she isn’t qualified to perform her job and you do not have to retain her.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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