In light of the duty to reasonably accommodate and avoid discrimination against qualified employees with disabilities, managing a disabled employee with performance or conduct problems can be difficult. To provide practical guidance in this problematic area, the EEOC recently published a memorandum which addresses some of the recurring issues. (This memorandum is subject to minor changes due to the passage of the ADA Amendments Act, although the changes would not affect the overall content or guidance in the memorandum.)

The memorandum, which can be found at, provides answers to commonly asked questions. For example, the memorandum explains how to respond to an employee who first requests an accommodation in response to counseling or a low performance rating, and explains how to address attendance and leave issues for disabled employees.

While the memorandum sets forth the EEOC's position, it is not the equivalent of law and should not be relied upon exclusively. California employers must also ensure that their actions also comply with FEHA's requirements, which are not identical to the ADA.