One of my employees is repeatedly making mistakes that are starting to negatively impact customer service and our bottom line. I have reason to believe that a medical issue may be the cause. Am I at liberty to confront the employee about it?
As many MEA Members can attest, addressing performance-related issues with an employee can be uncomfortable. The situation may become increasingly more difficult to navigate when a perceived, yet undisclosed, employee medical issue also comes into play. Understanding your rights and obligations as an employer is crucial to knowing what course of action is most appropriate to address and resolve the situation.
The hotline exchange below highlights some of the challenges and common misconceptions that employers face when responding to an employee who fails to perform essential job functions due to a possible medical problem.
Member: Several of our long-time customers have complained that our customer service representative, Hank, has made numerous errors when recording and processing their orders. They say that despite repeating themselves, enunciating clearly, and speaking louder per Hank’s request, he still incorrectly recites their street addresses and order information. Our customers believe that he has a problem with his hearing. We want to address the situation, ask Hank about his hearing, and even urge him to undergo a medical evaluation, but since we can’t do that, I am not sure how to proceed.
MEA Expert: Thank you for calling the hotline for guidance. We field this question frequently, and I am happy to help. I am curious as to why you claim you “can’t” confront Hank and inquire about his hearing.
Member: Well, I recently attended MEA’s ADA workshop, and the facilitator talked about the risks associated with asking employees medical questions. I want to be sure that we’re compliant with ADA guidelines and not overstepping our bounds. And besides, we’ve never personally experienced or witnessed Hank’s poor hearing. The feedback that we’re receiving from our customers is merely “hearsay.”
MEA Expert: I understand and appreciate your expressed commitment to upholding ADA guidelines. However, I need to clarify a few things regarding “hearsay,” as its application is commonly misunderstood by our members. They say that they heard something, but that they know they can’t do anything about it because it’s “hearsay.” But “hearsay” is a legal term, and it relates to when evidence is or is not admissible in court. But in the workplace, this rule of court does not apply, and in fact, many laws expressly allow you to act on things you heard from other people.
Member: I didn’t realize that. Does this mean that we can ask Hank about his hearing in response to what we’ve heard from customers?
MEA Expert: Yes, this is a perfect example — the ADA says that you can make medical inquiries or require a medical examination of an employee based, in whole or in part, on information learned from another person. The only requirement is that the information is “reliable” and would lead to a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired by a medical condition. In this case, customer feedback has given rise to reasonable belief that Hank’s ability to correctly process orders is impaired due to a hearing problem; it is reliable because you received the same comments from multiple customers, not just one. Therefore, you may make disability-related inquiries of Hank,
Member: If Hank does acknowledge that a recent examination confirmed he suffers from a hearing problem, do we have to accommodate him in the workplace?
MEA Expert: Yes, but only if there is an effective and “reasonable” accommodation available which would enable him to perform the essential functions of his job, with “reasonable” being defined as something that does not impose an “undue hardship” on employer in the form of expense or disruption.
Member: What if he denies having a problem? What recourse do we have?
MEA Expert: Good question. Per the ADA, if Hank denies having any hearing-related problems, you can require him to submit to a medical examination to determine whether or not he can perform essential functions of the job. If he still won’t comply, you as the employer may discipline him for his performance problems in the manner that you would with any other employee having similar issues carrying out their prescribed duties.
Member: Thank you. All of this information will help us take appropriate steps to address Hank’s possible hearing issue. We’ll start by engaging in dialogue with him as a first step and then proceed as necessary after that. If I have additional questions, may I call back for guidance?
MEA Expert: Of course. With the Employers Hotline, guidance is always a phone call away.
MEA’s goal is to provide current, detailed and useful information to hotline callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business.
