A reader asks:
We hired a new director about 3 months ago. Things haven’t been going well. As a result, this person recently received a verbal counseling and performance improvement plan, as some serious concerns regarding performance and behavior have been brought up from numerous sources. A few hours after the counseling, I received an e-mail from this director stating they are a vet with a confirmed 70% impairment rating. Many of the issues addressed in the counseling were part of their disability.
I have started the interactive process. I’m asking for physician certification for PTSD and suggestions from the employee for potential accommodations. That’s all well and good. My larger concern is this – how do we proceed if there aren’t reasonable accommodations? If I have a director with emotion and impulse control regularly underperforming, showing zero engagement in learning and owning their department’s tasks, or yelling at and upsetting their direct reports. Still, those are protected symptoms of the disability; how do I even begin to proceed? Can I still address the behaviors as performance concerns?
We are a small organization, and transferring this person to another position is not an option. I want to do what is right for the individual, but I also have to protect the company’s interests, and I do not see a clear path to do both. It is really keeping me up at night!
This is a complicated and difficult situation for everyone. You don’t want to terminate someone, and you undoubtedly feel even more strongly about a vet with a disability. And, while I hate to bring it up, it could also be a PR nightmare. (Local company fires disabled vet after he reveals his disability! More at 6:00!)
But, the Americans with Disabilities Act doesn’t require that you continue to employ someone who cannot do their job. The law requires that the employee do the job’s essential functions, with or without an accommodation. If there isn’t a reasonable accommodation that allows them to do the essential job function, you can terminate them.
The EEOC breaks the accommodations down into three areas:
“(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”(4)
Your new director’s veteran status also offers protection. I don’t pretend to be an expert on USERRA, but the EEOC says this:
While the ADA requires employers to make certain adjustments for veterans with disabilities called “reasonable accommodations,” USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment.
AskJan suggests some questions about accommodations for people with PTSD that perhaps neither you nor your employee has thought of:
What limitations is the employee experiencing?
How do these limitations affect the employee and the employee’s job performance?
What specific job tasks are problematic as a result of these limitations?
What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
Has the employee been consulted regarding possible accommodations?
Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
Do supervisory personnel and employees need training?
Now, that’s a lot of information to get to your real question, which is what on earth do we do if none of the reasonable accommodations work?
Well, the answer is you fire this person.
And that answer sucks. There’s nothing good about it. But, you hired them to do a job. If they cannot do the job even with support, they can’t work there.
You should not move to termination without consulting with a local employment attorney who has experience with ADA and USERRA. There will be lots of boxes to check and conversations to have before you terminate employment.
I wish I had a rosier answer or some fancy trick you can use to come up with a solution when no reasonable accommodation exists, and if someone knows one, I’d be happy to hear it!
Image by Sage Scott from Pixabay
11 thoughts on “What If There Is No Reasonable Accommodation for a Disabled Veteran?”
Hi Evil —
I think this story points out where and how you evil, uncaring, hard-hearted, unsympathetic, follow-the-law HR folks really earn your keep.
Thanks for putting this up, and for reminding us (or at least me) why the HR function, when done correctly, is such a vital piece of organizational stability and success.
I read Evil’s response as fair and accommodating to all employees. If the director and HR cannot find accommodations that allow the director to complete their job duties, then they cannot do the job.
You may be seeing this only from the director’s perspective, but I am seeing this from the staff that have to work with him. No one gets a pass to yell at co-workers. HR has a duty to protect the staff from abuse as much as they need to guide the director to accomodations.
First of all, I like the new format of your site. Much better on the eyes visually.
The contents of this article were a very concise detailed response that gave the ultimate answer if you can’t find the accommodation that works for both sides, then the job is no longer suitable for the ability of the employee to meet the demands of the position. Sometimes the reality is that they no longer can work at the job and the best you can do is to provide a layoff package.
I wonder if the employee didn’t give the answer in his email. His diagnosis by the VA means he will have trouble functioning- hence the “disability” and it’s pretty serious. If he isn’t able to get a handle on his situation enough so that he can perform his job, then he will need to be replaced. His issue has been documented by the VA, and he’s made you aware, he may not be able to work in a job with people.
Per VA’s rating criteria, a 70% PTSD rating reflects that you display impairment in most areas such as, work, school, family relations, judgment, thinking, and mood. 70% PTSD rating lists several symptoms that affect occupational and social function. They include depression that interferes with daily functions, suicidal ideation, obsessive rituals interfering with daily activities, impulse control problems, spatial disorientation, neglect of personal appearance or hygiene, and difficulty establishing and maintaining relationships. It is important to note that this list is not exhaustive, and you do not need to experience all these symptoms to qualify for a 70% rating.
Even with a 70% rating, this vet may have accommodations that work for them, such as being allowed time to leave and process emotions until control is resumed, or working from home on bad days. In addition, training amongst staff on how to handle emotional outburst, such as a phrase to indicate to the director-vet that they have had a lapse in emotional control and may need time to cool down may be helpful for this company.
Two things concern me with the description of the performance of the employee in question. First, the letter stated the employee “showed zero engagement with training”. That’s so subjective! Is this person learning? If so, then what is “zero engagement”? If they’re not learning, would an accommodation such as written lists help? Or an alternative method of training?
The other aspect that concerns me is “refusing to take ownership”. How are you defining ownership? Is this something that has been properly defined? I ask because yet again, this is subjective! Is this a matter of training (see above; is the director saying they aren’t trained on this and thus cannot take ownership?), or is this something different, like forgetting projects/tasks mentioned in verbal conversation, and thus, an accommodation could be following up with task assignments with an email and defined check in dates?
PTSD can be accommodated with low cost process changes, if the company puts in the time to help their employee.
PS: I’m aware Annie didn’t write the letter. The “you” here is for the OP. Even severely affected people who want to work should have the ability to work if reasonable accommodations provide a pathway that allows them to.
I am wondering about the definition of “reasonable”. If for example, the employer must spend $$ on accommodations, what is “reasonable”? Hey, we all want to be reasonable, but that sounds like a relative term. Just how much burden can an employer be reasonably expected to bear?
You may find these two cases interesting: https://www.lexology.com/library/detail.aspx?g=d3099621-70c7-4f2c-bd8b-afb23e309958
Just don’t let this scare you or your company off from hiring another disabled veteran. I can’t tell you how how many times I’ve heard, “We hired someone from XYZ group and they were horrible, so we’re not hiring from XYZ group again.”
This literally happened to me—my perfect-fit job changed to focus on an area in which I have a recognized, documented disability. Even with accommodations, I could not continue under the changed requirements of the job. It is legal but unfortunate.
Suzanne’s advice re the employment attorney is sound. If you must terminate, I would also consider offering severance and whatever else you can to make the transition easier.
It’s a hard decision to make.
And sometimes, the employee knows, and still can’t make that decision.
I’d only implore, especially with that long list of performance issues, that termination includes reasoning that shows it was due to inability to accommodate disability.
This, especially with smaller employers in right-to-work states, is where an already bad situation turns into disaster. Employers afraid of litigation fire for conduct, leaving employee not only disabled and unemployable…
…it sandbags every application for disability support with serious doubt. SSDI is not unemployment, and employees fired for conduct when actually too disabled to work, face added years to their applications proving what was ALREADY PROVEN in their discharge!
Been there done that have a long-delayed Human Rights Commission investigation still pending to back it up.
My SSDI admin law judge, 22 months and two denials later, had only one question…why did my employer not know?
I had proof they DID know, for 20 years. That ended the hearing.
Many don’t. That adds ANOTHER year or two.
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