Reductions-In-Force under the ADA: May Employers Base Decisions on Disability-Related Performance and Attendance Records?

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The application of the Americans with Disabilities Act (ADA) to employer reductions-in-force (RIFs) has received little attention. Although the statutory law and Equal Employment Opportunity Commission regulations offer little guidance, the few ADA cases to-date suggest the rules that courts may apply to claims of disability discrimination in company layoffs. A company's decision to have a mass layoff is not subject to attack under the ADA, but the method used to select employees to be laid off or discharged may, in some cases, violate the ADA. Using seniority, elimination of job positions, or saving money by discharging highly-paid employees are methods that are usually safe. The best management-oriented methods -using job performance or employees' future value to the company -are less safe, but can be justified under the "legitimate business reason" defense. Excessive absenteeism or poor job performance -even if caused by a legal disability - may be used as a basis for discharging employees in a reduction-in-force without violating the ADA if the employer adopts job descriptions and company policies on these subjects, and applies the policies reasonably and fairly. However, employers may be restricted in basing a RIF on absences covered by the Family and Medical Leave Act.

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