You fire a worker who has consistently failed to operate his forklift in a safe manner, despite repeated warnings and training. What you don't know is that a protected medical condition is behind his poor performance - which means you have a duty to explore potential workplace supports (reasonable accommodation) instead of showing him the door. The mistake is understandable...but it's one that could be costly to your company. It’s always a good rule of thumb to talk with the employee about his/her unacceptable performance and provide an opportunity for him/her to disclose disability and the need for an accommodation that would get the job done in an acceptable and safe manner (interactive process). If the employee doesn’t disclose a disability, and provides no reason as to why the job performance is unacceptable, termination is then possible. Remember to document everything discussed and actions taken every time you meet with this employee as evidence of your good faith efforts. Remember, if you are concerned that an employee might pose a direct threat to the safety of himself of others in the workplace, you must conduct an individualized assessment and show that there is a significant risk of substantial harm to the health or safety of the disabled individual or others. You must also be able to demonstrate that the threat cannot be eliminated or reduced by reasonable accommodation. And finally, your determination that an individual poses a direct threat must be based on reasonable medical judgment that relies on the most current medical knowledge available. Your assessment cannot be based on myths and fears of what “might” happen.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.