Performance Standards and Reasonable Accommodation

By Barbara Haga, July 17, 2019

I do a lot of training with managers on performance management and performance appraisal system requirements. That includes discussions of performance failures and how to hold employees accountable. It seems that many don’t have a good grasp of the difference between a reasonable accommodation and an unreasonable one.  When I talk about lowering performance standards not being a reasonable accommodation, they seem to be surprised by that.

The scary part of this is that based on what I see in classes, managers may be doing this informally in many situations without ever raising a question to the appropriate EEO/HR/Legal staff as to whether it is required. If you sampled performance narratives, I think you will find things such as “For this rating period, the employee was not required to meet the standard of 19 widgets a month, but was required to make 12” or “The employee’s assignments were limited to one portion of the process for this rating period,” or “The employee’s assignments included only XXX types of cases for this rating period.” These are all indications that someone is adjusting requirements for some reason. The next step should be talking with the manager to find out what the reason was – and whether a question regarding reasonable accommodation is part of it.

What needs to happen to make sure managers can distinguish between when they are required to accommodate and when they are not? Education would be the obvious answer.  That could include incorporating this kind of information into performance training, or it could be as simple as a short briefing included as part of a staff meeting for managers.

The EEOC’s guidance on applying performance and conduct standards to employees with disabilities is a helpful place to start. It is entitled The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.  The document includes numerous scenarios regarding when accommodation is required that cover private, state and local government, and Federal employees. Kudos to the EEOC for keeping the document updated and posting the date of the last revision.  (Certainly would be nice if OPM adopted that practice for their fact sheets and other guidance documents they have posted, but I digress).

What important points did the EEOC make?  (Section III.a)

1) An employer should apply the same quantitative and qualitative requirements for performance of essential functions to an employee with a disability that it applies to employees without disabilities.

Lowering production standards or eliminating requirements for essential functions is not required as an accommodation.  The point of accommodation is to remedy the situation so that the disabled employee can perform at the same level as any other employees in the job. Eliminating essential functions, of course is not a reasonable accommodation, but taking out marginal functions is a possible accommodation.

The first example provided in the guidance is that of a Federal employee who cannot meet a performance standard:

Example 1: A federal agency requires all of its investigators to complete 30 investigations per year in addition to other responsibilities. Jody’s disability is worsening, causing her increased difficulty in completing 30 investigations while also conducting training and writing articles for a newsletter. Jody tells her supervisor about her disability and requests that she be allowed to eliminate the marginal functions of her job so that she can focus on performing investigations. After determining that conducting trainings and writing articles are marginal functions for Jody and that no undue hardship exists, the agency reassigns Jody’s marginal functions as a reasonable accommodation.

In this example, the agency was able to accommodate the situation because the essential function could be performed at the required level by allowing use of time that would have been spent on the marginal tasks. However, if there wasn’t significant additional time that could be gleaned from other assignments or Jody was not able to complete the number of investigations required for medical reasons, or if those trainings/articles were deemed essential, she would not have been entitled to this accommodation.

The second example covers additional work requirements beyond what the employee is presently required to do. This scenario involves a private sector employee, but I am sure we have all encountered situations where new requirements were added to positions. (Look at the article I wrote in March on conditions of employment related to a computer specialist who had to meet new certification requirements.)

Example 2: Robert is a sales associate for a pharmaceutical company. His territory covers a 3-state region and he must travel to each state three times a year. Due to staff cutbacks, the company is increasing the number of states for each salesperson from three to five. Robert explains to his manager that due to his disability he cannot handle the extra two states and the increased traveling, and he asks that he be allowed to have responsibility only for his original three states. The company may refuse this request for accommodation because it conflicts with the new production standard. However, the company should explore with Robert whether there is any reasonable accommodation that could enable him to service five states, and if not, whether reassignment is possible.

I think many managers might feel in this situation that it would be a legitimate decision not to require Robert to perform over the same area as other employees because of his disability, when the answer is actually quite different.

The third example involves a computer specialist and a PIP.

Example 3: A computer programmer with a known disability has missed deadlines for projects, necessitating that other employees finish his work. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. The employee is placed on a Performance Improvement Plan, but his performance does not improve and he is terminated. At no time does the employee request a reasonable accommodation (i.e., inform the employer that he requires an adjustment or change as a result of a medical condition). The termination is justified as long as the employer holds the employee to the same performance standards as other programmers.

In this example, management took the appropriate step to place the employee in the demonstration period because the work was not being accomplished at the required level, even though they knew the employee had a disability. I believe that there are likely many situations where management would accept the less than acceptable work because they felt they had no alternative but to do so.

The current administration has sent lots of signals about the need for accountability in performance management.  Based on what I have seen, this is an area where managers need some help to ensure that accountability is maintained appropriately.