April 12, 2022 • Anne-Marie Mizel
Category: Legal Updates
Picture the following scenario: An employee engages in misconduct at work that results in suspension pending investigation and would normally probably end in termination. But at the time of the suspension, the employee requests and is granted a medical leave. The termination is not finalized while the employee is on leave, and while on leave, the employee claims that the misconduct was caused by a mental illness and requests reasonable accommodation under the Americans with Disabilities Act – in short, they ask for a second chance.
Is the employer obligated to give the employee that second chance?
The employer might at least be required to engage in a dialogue with the employee about it. The law is clear that an employee who is already discharged for improper conduct cannot demand reasonable accommodation of a medical condition after the fact. It is the employee’s obligation to request accommodation for a medical condition while still employed.
But in the scenario described above, the employee is still an employee; they have not been discharged. They are therefore entitled to ask for reasonable accommodation. However, that does not mean the employer must grant it. An employer need not grant any accommodation that would create an undue burden. There are several factors to consider:
• The nature of the conduct – If the conduct was clearly a dischargeable offense, the argument is stronger that it is too late for the employee to request another chance.
• The effect that bringing the employee back might have on other employees – Other employees will not know of the employee’s medical condition and might be discomfited by the employee’s return if the conduct involved conduct like harassment or theft. In addition, if other employees have been discharged for similar conduct without being given a second chance, other employees will perceive favoritism and unfairness.
• The effect that bringing the employee back might have on clients or vendors – If the misconduct affected a client or vendor, it might be difficult for the employer to return the employee to work without risking its relationship with that client or vendor.
Is it wrong to grant medical leave to an employee who has committed serious misconduct? Of course not; their claim of mental illness might be legitimate, and the employer might sincerely want to help the employee salvage their mental health and their career. But as long as the employee remains in its employ, the employer remains obligated to consider reasonable accommodation if requested.
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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.