Is Misconduct Protected Behavior When an Employee Has a Disability?

Each workplace has rules that govern behavior, but enforcing them can be complex when an employee who behaves improperly has a disability. Should an employee be punished according to regulations or are they protected if their disability triggered the misconduct?

When concentrating on misconduct by an employee with a disability, the first question that must be asked is whether or not a link exists between the employee’s disability and the behavior. This will help determine if discipline is lawful. If an employee with a disability violates a conduct standard that’s applicable to all workers and their disability did not play a role in the misconduct, they may be disciplined. There should be no special treatment for a disabled employee, unless it’s necessary for their benefit.

However, an employee can be punished if their disability caused or contributed to the misconduct, only if certain requirements are met. The conduct standard must be job-related and consistent with business necessity, and other employees must be held accountable to the same standard, citing Americans with Disabilities Act (ADA) regulations.

For example, if a customer-facing employee with Tourette Syndrome has uncontrolled outbursts of “rude” behavior, an employer may have legal grounds to “discipline” them by moving the employee out of that position and into one where the disability is not an issue. On the other hand, a warehouse worker with Tourette Syndrome should not be disciplined for the same outbursts, since they do not work with customers and are typically out of the public eye.

An employee with a disability that leads to misconduct can ask for accommodations to avoid the issue in the future. Ideally, they would disclose their disability and ask for accommodations before violating a conduct rule for the first time. This simplifies the process for both the employee and employer.

If you have been treated unfairly at work due to a conduct violation, contact our Hollister employment law lawyer at Polaris Law Group. Bill Marder has recovered millions of dollars in verdicts and settlements on behalf of wronged employees in California.

Call (888) 796-4010 or contact us online to schedule a free consultation.

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