ASK HUMAN RESOURCES ADA does not completely shield workers from termination, other actions
Johnny C. Taylor Jr. tackles your human resources questions as part of a series for USA TODAY. Taylor is president and CEO of the Society for Human Resource Management, the world’s largest HR professional society and author of “Reset: A Leader’s Guide to Work in an Age of Upheaval.”
The questions are submitted by readers, and Taylor’s answers below have been edited for length and clarity.
Question: I was terminated after I had a manic episode at work. My employer was well aware that I am bipolar 1 and this was supported by my psychiatrist of 25 years. Do I have any recourse in fighting this termination? – Sebe
Johnny C. Taylor Jr.: It takes strength and courage for you to disclose your medical condition. While the Americans with Disabilities Act does protect employees from discriminatory employment actions based on disabilities, known or perceived, it does not completely shield employees from adverse employment action.
Employment is at will in all states, except for Montana, which means an employer and employee can terminate the relationship at any time, with or without notice or reason, as long as the termination does not violate the law such as anti-discrimination laws. However, the reason cannot be based on protected class status such as race, sex, color, age, religion, national origin, disability and genetic information.
On its face, you may have a legitimate case under the ADA; but it will totally depend on your prior work performance. Before fighting the termination, think about your job performance. Have you had any performance discussions or performance improvement plans before your termination? Did your employer document any violations of misconduct or violation of policy or other work rules? If you had performance problems, your employer could be totally justified in its decision to end your employment.
Assuming there are no problems with your performance, we turn to what your employer may have done that violated the law. Were you engaged by your employer in the ADA interactive process to determine if any reasonable accommodations were needed to support you? Do you know if other employees experienced similar workplace health crises but didn’t terminate their employment? If your answer to any of these questions is yes, you may want to look to your former employer’s policy regarding grievances or consider contacting the Equal Employment Opportunity Commission or speak with legal counsel regarding the circumstances.
One last thing to keep in mind: Even if you had an accommodation in place, your employer may still be able to take adverse actions against you if the accommodation presented is or becomes an undue hardship, or if you were deemed a direct threat to yourself or other employees.
I know this is a sensitive matter, and I hope you can reach an amicable conclusion.
Q: My company went to 100% remote work during the height of the pandemic. We have been back in the office fully for a couple of months. I feel like I can get my work done from home or within an alternate schedule. What is the best way to approach my employer to request schedule flexibility (four-day work week or remote work)?– Leanna
Taylor: You are among a growing contingent of workers looking for work flexibility. Virtually every employer is facing this rising demand for remote work and alternative scheduling. It is important for workers to share their preferences with employers who are making critical workplace decisions. Employers are constantly trying to weigh business needs and workforce needs to find solutions that benefit both.
As you build your case for schedule flexibility, be sure to include how it will benefit business performance. Draw from your experiences during your remote work period. Highlight how your work was positively impacted during that time. Point to some opportunities to improve remote work experience and effectiveness. In preparation for speaking with your people manager, consider what type of flexibility you are seeking and why. Outline the benefits of the options you seek.
Your company may already be exploring flexible work options. In today’s tight labor market, many employers are finding telework and flexible scheduling to be valuable incentives in attracting and retaining talent.
Your company’s decision will come down to what makes sense for their business needs and workplace culture. Even if the answer is “no,” you will have done the right thing in giving respectful and informative feedback to your employer. I hope you find the work arrangement that suits you best.