Can an Employer Fire an Employee with a Mental Disability for Violating the Employer’s Code of Conduct?
June 30, 2017
Luis Hansen, Esq.
Ty Hyderally, Esq.
The New Jersey Law Against Discrimination (NJLAD) and the Americans with Disabilities Act (ADA) require employers to reasonably accommodate qualified employees with disabilities. A reasonable accommodation is an alteration to a disabled employee’s work condition in order to help that employee to perform the essential functions of his or her job. Though most people with mental disabilities are able to perform their duties without any issues, some employees might have mental disabilities that cause them to violate their employers’ code of conduct. If an employer’s code of conduct is job-related and consistent with a business necessity, however, that employer does not have a legal duty to alter the code as an accommodation. Therefore, employers can legally fire an employee with a mental disability for violating most codes of conduct, even if the underlying conduct is caused by the employee’s disability.
Whether a code of conduct is job-related and consistent with business necessity varies from case to case and depends on the specific circumstances of the employment. There are several factors that courts take into account, including the disabled employee’s specific conduct, the frequency of the conduct, the nature of the job, the working environment, etc. Though employers generally have wide latitude to enforce conduct rules pursuant to the NJLAD and the ADA, there are instances in which the application of the code cannot be shown to be job-related or consistent with a business necessity.
Moreover, the NJLAD and the ADA require that employers engage in an interactive process in order to find a reasonable accommodation for an employee’s disability. Thus, employers might be required to find some accommodation other than changing its code of conduct. This means that, in some instances, employees with mental disabilities can avoid violating a bona fide code of conduct and possible termination if they inform their employer of a mental condition that might lead to a violation of a conduct code and request an accommodation that would prevent that violation.
For example, an employee with Tourette’s syndrome might have a tic that causes him or her to curse involuntarily in front a client. In most companies, this would constitute a violation of a bona fide code of conduct because not offending a client is job-related and consistent with the business necessity of retaining clients. If that employee does not inform the employer of his or her condition and curses in front of a client, the employer may legally fire that employee. However, if the employee informs the employer of the condition before he or she violates the code of conduct, the employer has to try to find a way of accommodation that employee’s disability. In this example, possible accommodations may be relocating the employee to a work area that is away from clients. The employer could also give the employee several “tic breaks” throughout the day if such breaks help the employee control his or her tics the rest of the time. Still, this type of accommodation may be deemed unreasonable if the employee’s job requires him or her to interact with clients and tic breaks do not help control the impulses.
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