Terminating any employee is always a difficult process, rife with opportunities for missteps that can cause you to burn bridges or even find you on the receiving end of a hefty lawsuit. However, letting an employee with disabilities go can be particularly tricky, due in part to the increased risk of discrimination lawsuits and the potential for violations under the Americans with Disabilities Act (ADA). As a small business owner, how do you protect yourself when you need to terminate an employee with disabilities?
Now, before we kick off, let’s first make sure we’re all on the same page about current ADA requirements. Under the act, a disabled person is defined as someone with a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having an impairment, even if it doesn’t limit “a major life activity.” In order to stay on the right side of the law, employers must take steps to “reasonably accommodate” disabled workers or an “otherwise qualified individual,” provided it doesn’t cause an “undue hardship” to the employer.
In order to prevent violation of the ADA, we must first understand the law and how it pertains to letting employees go. Specifically, the US Department of Labor notes that employers can fire disabled workers under three circumstances: 1) The termination is unrelated to the disability; 2) the employee does not meet legitimate standards or requirements for the job, with or without reasonable accommodation or 3) the employee, due to their disability, poses a direct threat to the health and safety of the workplace.
For their part, workers can only claim that their firing was a direct violation of the ADA if they can provide direct evidence of discrimination OR prove that they are both disabled, suffered an adverse employment action, and yet are qualified to perform the job.
With all this in mind, the most important step you can take to protect your business, for any employee who you plan to let go, is to maintain a “paper trail” that appropriately documents incidents or examples that support your decision to terminate employment, such as inability to follow rules, failure to complete projects to a satisfactory level, excessive tardiness, or other instances of non-compliance. Where possible, this paper trail should include the names of those involved (including any managers or coworkers), dates, times, places, and any other relevant factors that help build your case, as well as documentation of any corrective actions taken to curb the behavior. In addition, your documentation should be in line with what you would do for any employee in the position so that you can prove that these standards and rules are consistent for all employees of this level. And of course, it goes without saying that the reason for the disciplinary action — as well as the disciplinary action taken — must be in line with the actions outlined in your employee handbook that you required all new hires to both review and sign in order to show their agreement with the rules.
One relevant example for our times is with layoffs. If you plan to layoff a disabled employee in order to preserve your business during the Covid-19 crisis, you need to be able to prove that your company’s financial situation warrants the job losses and that other employees have been or are expected to be similarly impacted by lack of funding and/or work in the future. But what if you only need to let the one person go? In this case, you can but you’ll want to provide solid evidence that your decision on letting this individual go was at all influenced by that individuals’ perceived disability and was instead guided by the fact that the person who remains an employee was in some way more qualified for their role (longer tenure with the company, able to take on additional tasks, etc). Further, you’ll need to show evidence that other employees will be impacted by the budget cuts that led to you letting go of the one employee, such as cutting hours for others or forgoing discretionary bonuses until the financial outlook has improved. In making this financial case for their dismissal, you’ll also need to prove that letting that disabled employee go will result in cost savings for your company that couldn’t have otherwise been achieved by temporarily cutting the hours of several employees or otherwise trimming your workforce budget.
In summary, if you’re planning to let a disabled employee go, be sure that their disability does not factor into your decision and that you can prove this fact through careful documentation throughout the employment relationship.
