How do you respond to an employee who reports a disability and requests a reasonable accommodation?
Take the case of a long-term employee who has been mostly exemplary but her attendance has recently been poor, she has been frequently tardy and her performance is declining. You meet with her on this matter and she informs you that she has a medical condition that is depriving her of sleep and causing her to be late or absent. It leaves her so exhausted that she can’t perform her work to normal standards.
What action does an employer take?
If you are an employer with 15 or more employees you are covered by the Americans with Disabilities Act (ADA). Under the ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. Under the ADA regulations, “major life activities” include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
In our example, how would you determine if your employee has a disability? While the Americans With disabilities Amendment Act of 2008 (ADAAA), amended the ADA and makes it easier for an employee to be considered disabled, you are not required to take the employee’s word. If the disability is not obvious, you may be entitled to seek medical certification from the employee’s physician to determine if the condition qualifies as a disability. (Note: you should never contact the doctor yourself. BCN Services would conduct that review.)
Let’s assume that the employee’s doctor states that the medical condition is significant and would be considered chronic. It affects the employee’s “major life activity” of sleep. The employee has been prescribed medication and will likely be improving but it may take 3 to 4 months to adjust the level of medication to allow the employee to get back to normal. It is the doctor’s opinion that the employee may have difficulty getting to work on time, may miss a day or two of work periodically suffering from sleep deprivation and may have difficulty focusing at work at times.
You now know that the medical condition substantially limits your employee’s ability to sleep and you are required under the ADA to explore a reasonable accommodation in an interactive process with the employee. You may reject the employee’s proposed accommodation if doing so would impose an undue hardship on the operation of your business. You may still require the employee to be qualified to perform the essential job functions with or without accommodation.
How can you determine if an accommodation is an undue hardship?
Undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.
According to the Equal Employment Opportunity commission (EEOC), if providing an accommodation would be an undue hardship, the employer must try to find another way to accommodate the employee. For example, if the undue hardship is due to cost, the employer must seek funding from an outside source, such as a vocational rehabilitation agency, or consider whether the cost can be offset by state or federal tax credits or deductions.
If there is no reasonable accommodation, it is possible to terminate the employee. But to limit potential liability, you should have a thorough discussion with the employee and seek guidance from BCN Services before making that decision.
In our example, a scheduling change would be one way to accommodate the employee. The employer might offer a flexible schedule allowing the employee to start work at 10 a.m. instead of 8 a.m. If the employee is a manager that opens the business, this might not be a reasonable accommodation.
Explore other options with the employee. She may not like an accommodation of transitioning to night manager, for example, but it could be a reasonable option for your business. Another accommodation could be to provide the employee with unpaid leave until the condition is controlled. If her work performance is significantly impacted you may find no option but to offer unpaid leave until her condition is corrected. That could be considered a reasonable accommodation.
How long would an unpaid leave be reasonable?
According to the EEOC and recent court rulings, a leave estimated by the physician to be of a specific time period and not indefinite would likely be considered reasonable.
Each case must be evaluated on its own merits and should be based on the company’s size, resources and the nature of the business.
While all disabilities are not eligible under the Family and Medical leave Act (FMLA), some are. Employers with more than 50 employees may have to offer the employee a Family Medical Leave. In our scenario, if the business has more than 50 employees the employee could use Family Medical Leave intermittently or consecutively while her medication was being regulated. If the employee is eligible for FMLA, she would be allowed up to 12 weeks of leave. If she exhausted her 12 weeks of FMLA, the ADA rules might still provide her with accommodations.
In other circumstances the FMLA and the ADA might cover an employee at the same time. To complicate the issue further, ADA, FMLA and workers’ compensation injuries can be intertwined in the same case but that is a blog for another day!
The EEOC has publically stated that ADA enforcement is a primary focus of its compliance efforts. If you have a situation where an employee or applicant tells you that he or she has a disability and needs an accommodation, please contact your Partnership Manager or the Human Resources department at BCN Services for assistance and guidance on this tricky area of employment law.
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Jeff Walsh, Partnership Manager