New employee with limp

Trish

(IN) Employee, still in 90-day orientation period, is not performing as expected. Job involves mainly working in files all day long. It means looking for files that could be anywhere in the building including downstairs. This was explained in the interview with the supervisor saying that the job was a lot of labor and someone with back problems may have trouble. She said she did not have any back problems - and added that she had a limp caused by polio, but it wouldn't be a problem. Employee claims that she was used to this kind of work, but can't keep up with the volume. Our previous employee was able to do the job in 5 hours. We moved the position to 8 hours with this hire hoping to add resposibility. However, she hasn't been able to even finish the original work in 8 hours. Could releasing this employee be a problem with ADA? THANKS FOR YOUR HELP!

Gar

Hopefully, the employee's performance has been thoroughly documented. Although the interviewing supervisor's "bad back" comment is less than desireable, I don't see a problem with termination if the documentation is in order.

System

[font size="1" color="#FF0000"]LAST EDITED ON 11-13-01 AT 12:37PM (CST)[/font][p]
I am assuming your company falls under ADA provisoins.

While you may have documented a work performance problem, you, at this point, are not entirely off the ADA hook, so to speak. The employee has an obvious impairment -- a limp. Whether that rises to an ADA disability is not established, nor has it yet been discounted by the employee, who is now actually doing the job, as a factor im the poor perfomrnace.

During conferencing periods with the employee regarding the performance issue, did she give any thoughts or explanation as to why she isn't meeting the expectations? If she identified or linked it to the limp or polio, you have an ADA claim. You would, therefore, need to resolve it.

Even though the employee at the beginning said she did not believe the limp or the previous polio would be a problem in doing the job, she is now experiencing work problems. In the actual performance of the job, she may be finding that it the limp may be impacting it.

As an obvious impairment, you can, and even should, inquire about the limp if she doesn't resolve the matter voluntarily by discounting it. Once she eliminates it, then she is removing herself from the ADA arena for sure (absent any hidden impairment or some labor lawyer trying to undo her "on-the-job" disclaimer). If she links the limp to the poor performance, then you need to go through the ADA process. It may turn out not to be a disablity under ADA, but until you make that determination, you're not off the hook unless she eliminates the limp as a factor in the poor performance.

Margaret Morford

I agree with both Gar and Gene and would add this. Don't forget even with a reasonable accomodation, she has to be able to do the essential functions of the job, that includes turning out a sufficient amount of work daily. You do not have to accomodate someone's in ability to do a sufficient quanity of work.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]