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  1. #1
    Join Date
    Jul 2015

    Default Job Offer Retracted Based Upon Employer's Finding a Poor Performance Review

    My question involves labor and employment law for the state of: Massachusetts

    I am a fee for service clinician for a large hospital group. I provide psychotherapy 2 days per week in an outpatient clinic. I applied for and was offered a second job with the same medical group yesterday working as an Emergency Services Clinician.

    One month ago my supervisor issued a warning about my "lack of attention to detail" in charts. I was very concerned by this and sought a neurological exam. I was diagnosed with ADD and medication has transformed my personal and professional life.

    Here is the email I received from HR this afternoon:

    Hi XXX

    As part of the recruitment process, HR reviews an employee’s performance history before approving transfers or additional jobs. Because of your recent performance issues at the Gloucester Clinic you cannot add a secondary position at this time. Should your performance improve to meet expectations you will be permitted to apply again in a year.

    Thank you,


    Is there any way I can get HR to bend on this? Should I find out if my supervisor threw me under the bus? How much should I focus on the disability?

    Many thanks.

  2. #2
    Join Date
    Oct 2014

    Default Re: Job Offer Retracted Based Upon Employer's Finding a Poor Performance Review

    That’s simply up to HR. The clinic cannot discriminate against you because of your disability, but a disability does not excuse poor performance. In other words, the Americans with Disabilities Act (ADA) and Massachusetts law does not protect an employee from the consequences of poor performance just because he or she is disabled. The employee must be able to do the job to necessary level of performance either with or without an accommodation. Here, you have had just perhaps a month of time on the ADD medication. The employer won’t know, though, until there has been sufficient time to see how your performance goes over a reasonable stretch of time, whether your work will now meet the employer’s requirements. I doubt that just one month of time will be enough for the employer to conclude everything’s fine. HR is apparently indicating a year. It is very common for employers to do reviews on an annual basis and evaluate your performance for the prior year to see how you’ve done. It may be that you’ll have to wait until your next appraisal before you are qualified to get the additional job. That is not something that violates the ADA if the employer applies that rule to everyone with performance problems regardless of what the reason for the poor performance was.

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