Retroactive Leniency – Is That a Thing?

by Bethany Wright on August 12, 2019

in Compliance

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Your employee has had several unexcused absences in the last few months and is now being written up for their poor attendance. When you speak to the employee, they inform you that they have a disability and that occasionally they will miss work because of it. This is the first time you have heard anything in regards to this employee’s disability.

You walk your employee through the interactive process and eventually they turn in medical certification and are approved for a reasonable accommodation to miss up to two days of work each quarter related to their disability. You also move ahead with the write-up for their attendance problems prior to their disability becoming known to you.

The same employee then misses a couple of workdays due to reasons unrelated to their disability and is now demanding that you retroactively dismiss their original absences prior to disclosing their disability because they were “protected under the Americans with Disabilities Act (ADA).” Are they right?

This sort of situation is not uncommon in the workplace. With all of the information immediately available at our fingertips, employees know a lot about laws and what sort of protections are available to them. However, it also means that sometimes they have been misinformed, or don’t fully understand how the law actually applies in reality.

In this case, this employee did not mention their disability prior to the absences and never requested a reasonable accommodation until after they had missed work and were being disciplined. Under the ADA, accommodations are prospectively applied, not retroactively. The EEOC Guidance on this subject states that “since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” This means you are not legally required to excuse any performance issues or misconduct prior to a reasonable accommodation being requested. Essentially, it means that employees cannot use the ADA to excuse their previous behavior.

Of course, you need to be sure the disability or request was truly unknown before taking any sort of disciplinary action. A complicating factor in these situations can arise when an employee mentions a physical or mental impairment that is impacting their ability to perform their job, but their supervisor does not recognize this link as a potential ADA issue.

That being said, if an employee does bring up a disability during a disciplinary or performance improvement process, employers have an obligation to begin the interactive process. Had this employee mentioned their disability and possible need for an accommodation to their manager prior to their absences, those absences may have been protected under the ADA as a reasonable accommodation.

If you have questions about the ADA, or maybe need some training for your supervisors, just let us know. We’re happy to help.

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