Dear Legal Mailbag:

As a new principal, I am finding my way in a very challenging time. Interestingly, a challenge I have greater than COVID is the apparent incompetence of my assistant, the long-serving secretary at my school. Her desk looks like a bomb went off, and, given the way she hunts, pecks and misspells, apparently she has yet to learn to type. To make matters worse, she works at her own pace – plodding.

Given her long tenure at my school and my recent arrival, I have been treading lightly for several months, offering suggestions rather than criticisms. However, after a particularly bad day yesterday, I finally brought her in for a chat. I thanked her for her work, but I explained that she really has to improve her performance if she wants to keep her job.

She was understandably surprised by the criticism, and then she surprised me. She became indignant and announced, “Well, you know I have diabetes!!” This whole disability thing confuses me, and I didn’t know what to say. So I ended the meeting abruptly, telling her that we need to talk more. What does Legal Mailbag think I should say next time we meet?

At a Loss for Words

Dear Loss:

Legal Mailbag congratulates you on your wise choice. It is often better to say nothing than to say the wrong thing. But you need to follow up, and Legal Mailbag is here to help.

When an employee discloses a disability, the employer is guided by the requirements of both Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Section 504 provides in relevant part that “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance,” and the ADA has a similar standard. Given this prohibition, when an employee claims to have a disability, we must ask (1) whether that claim of disability is valid, (2) whether the disability affects their ability to do their job, and if so, (3) whether the employee can perform the essential duties of his or her job, with or without reasonable accommodation.

By claiming to have a disability, your secretary triggered a process under the ADA. The first question you need to answer is whether your secretary has in fact a disability. The ADA provides that a person with a disability is “a person with a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment.” Employers do not have to accept a claim of disability asserted by an employee, and in appropriate cases, the employer can require medical documentation of the claim and even ask for an independent medical evaluation to determine whether the employee indeed has a disability. However, in 2008, Congress passed the ADA Amendments Act to broaden the scope of the ADA, and it is now clear that diabetes is a “disability” under the ADA. But that is only the beginning of the analysis.

The crux of the issue you confront is whether the disability affects the ability of the employee to do his or her job. That is where you should pick up the conversation. Legal Mailbag suggests that you meet with your secretary and ask her why she told you about her condition. If she cannot tell you how her diabetes affects her ability to do her job, you should explain that it is not necessary or appropriate for her to discuss her medical condition with you, and you should engage in the normal process of supervision and, if appropriate, progressive discipline. If she claims that her condition does affect her ability to perform her job, you should listen carefully. You must then decide whether you need further medical information or whether you will accept her claim that her disability affects her ability to do her job.

You are free to seek additional medical information to make that determination, from the school medical advisor or otherwise. If and when you determine that a disability affects an employee’s ability to do his or her job, the ADA requires that you engage in an “interactive dialog” with the employee, i.e. discuss with the employee how the disability affects her ability to do her job, whether reasonable accommodations are necessary to permit the employee to perform her job duties successfully, and whether with or without such accommodations, the employee can perform the essential duties of her job.

Legal Mailbag finds it hard to imagine how diabetes causes your secretary to be disorganized or to misspell words. But you should listen in the first instance, and if she provides a plausible argument that her condition does affect her ability to do her job, you should discuss what accommodations she is seeking. In that regard, Legal Mailbag will leave you with two thoughts. First, any such accommodations must be reasonable. Second, she must be able to perform the essential duties of her job in any event. Section 504 and the ADA provide important protections against discrimination on the basis of disability. But those protections do not require that you maintain in employment an employee who cannot perform his or her job successfully. That person would not be “otherwise qualified” under Section 504 or the ADA.

Originally appeared in the CAS Weekly Newsletter.