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First, this happens and it’s one of the major reasons why we should have documentation of our decision to discipline an employee in place before notifying the employee of the action. Without a record of the anticipated action it will be more difficult to persuasively show that you didn’t intentionally discriminate/retaliate against the employee because they told you about the disability.

Second, as a general rule disability laws don’t protect (disabled) employees from code of conduct violations. Normally you can proceed with the disciplinary action, but if it is a non-terminable situation you will need more information going forward as part of the interactive process to understand what reasonable accommodations to make for the employee.

If the disability had nothing to do with the employee’s misconduct, then nothing more needs to be done other than engaging in the interactive process. If, however, the employee’s conduct was a result of the disability, you can still discipline them over it, but the rule you’re enforcing must be consistent with business necessity and you must have treated other (non-disabled) employees the same. Consistent with business necessity is a complicated phrase and will be very fast specific, so you will want to be very clear that your conduct rule meets this standard, along with the equal treatment requirement, before proceeding with the discipline where the disability caused the misconduct.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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