In September 2008 the Equal Employment Opportunity Commission (EEOC) released new guidance on the application of the Americans with Disabilities Act to situations in which an individual's disability may impact on his or her performance. The guidance is available at Through the guidance, the EEOC seeks to:

  • help employees to determine when to request a reasonable accommodation;
  • encourage employers to raise an employee's disability during a discussion regarding performance issues in appropriate circumstances; and
  • outline the various responsibilities of both employees and employers in the process.

The EEOC provides 30 detailed questions and answers concerning:

  • performance standards;
  • conduct standards;
  • questions relating to both performance and conduct problems;
  • attendance issues;
  • dress codes;
  • alcoholism and illegal use of drugs;
  • confidentiality issues arising from granting reasonable accommodations to avoid performance or conduct problems; an
  • legal enforcement for employees who believe their rights have been violated.

The EEOC's examples provide a useful summary for employers struggling to understand:

  • when to provide a reasonable accommodation;
  • what to do when an employee exhibits performance deficiencies notwithstanding an accommodation; and
  • when disciplinary action is warranted and permitted.

For example, the guidance explains that while the Americans with Disabilities Act may require an employee to modify its time and attendance policies as a reasonable accommodation:

"employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee's disability necessitates), or accept irregular, unreliable attendance."

In particular, chronic, frequent or unpredictable absences may render the employee unable to perform essential functions of the job or otherwise impose an undue burden on the employer, excusing it from providing such an accommodation. In a similar vein, the EEOC guidance confirms that employers have no obligation to grant leave of indefinite duration to a disabled employee, although medical leave of some length (even extended leave) may be deemed to be a reasonable accommodation.

Employers would be well advised to consider the impact of the guidance when considering discipline regarding the performance or conduct of a disabled employee.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or by fax (+1 212 715 8000) or by email ( or

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