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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Accommodation of Continuing Health
Problem After FMLA Leave Q&A
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK’S E-TIP: Accommodation of Continuing Health
Problem After FMLA Leave Q&A
What happens if an employee takes all of her FMLA leave and still needs
additional accommodation to return to her job? The answer will depend
on whether the employee is now protected as disabled under the ADA. |
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THIS WEEK’S E-TIP: Accommodation of
Continuing Health
Problem After FMLA Leave Q&A
Q: We have an employee who has exhausted her FMLA leave but
says she can return to work if we make certain accommodations for
her,
including a five-hour day work schedule (reduced from a regular
eight-
hour day) and an expensive ergonomic chair. Do we have to reinstate
her with these accommodations?
A: If the employee has used up her 12 weeks of Family and
Medical Leave Act (FMLA) leave and she cannot return to her
full-time
position, your obligations under the FMLA cease and you do not have
to
reinstate her under that law. (Check
out Leaves of Absence model
policy, including FMLA, with 85 pages of supporting information
.)
However, and this is a big however, if the employee cannot return to
her
full-time position because of a continuing serious health condition,
you
should determine if she is now disabled under the Americans with
Disabilities Act (ADA). She may be entitled to an accommodation that
would allow her to perform the essential functions of the job. (Download
free Serious Diseases model policy, including ADA coverage.)
The definition of disability is somewhat tougher to meet than the
FMLA’s
definition of serious health condition. In short, the ADA defines a
disability as: (1) a physical or mental impairment which
substantially
limits a major life activity; (2) a record of having an impairment;
or (3)
being regarded as having an impairment.
The term “major life activities” refers to those activities that are
of a
central importance to daily life. According to the ADA Amendments,
which took effect January 1, 2009, these activities include, but are
not
limited to caring for oneself, performing manual tasks, seeing,
hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing,
learning, reading, concentrating, thinking, communicating, and
working.
The ADA Amendments further expand the definition to include the
“operation of a major bodily function, such as functions of the
immune
system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive
functions.”
The term “substantially limits” is not defined by the ADA, but as a
result
of the ADA Amendments, the term is supposed to be interpreted
broadly.
This new interpretation rejects the Supreme Court’s 2002 position in
Toyota
Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184 (2002), that
substantially
limits means “considerably” or “to a large degree” limited. The
Equal
Employment Opportunity Commission (EEOC) is charged with issuing
new regulations redefining the term, but has not yet done so, making
it
somewhat difficult for employers to determine what impairments meet
the ADA disability definition. But, the ADA does still allow you to
request
a medical certification to support that the employee meets the
disability
definition and needs the requested accommodation. |
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You should note
that you have to provide an accommodation only if the
employee is disabled, and then the accommodation only has to be
reasonable so that it will allow the employee to perform the
essential
functions of the job. Examples of possible accommodations
include
adjustments to the work schedule, which could encompass
part-time
work, and modifications to work equipment.
The point of the accommodation, though, is to permit the
employee to
perform the essential functions of the job. Accordingly, if she
cannot
perform the essential functions of the job in the shortened work
hours or
if the schedule is requested for an indefinite period of time,
part-time
work may not be considered a reasonable accommodation.
Alternatively, if the part-time work allows the employee to
perform the
essential functions of her job, but not nonessential ones, or if
it lasts for a
short period of time that allows her to return to full-time
work, the
accommodation may be considered reasonable.
Even if the employee is disabled, you are not required to
provide all
requested accommodations, but only those that are effective to
allow her
to perform the essential functions of the job. According to the
ADA
regulations, you do not have to provide the best accommodation
available or the one specifically requested by the disabled
individual, as
long as you provide an accommodation that meets the job-related
needs
of the individual. So, for example, if the employee does need a
new
chair, you do not have to provide the exact one requested but
only a
chair that meets her needs and allows her to perform her job
duties.
(Download
free Serious Diseases model policy, including ADA
coverage.) |
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on the definition of disability under
the
ADA, in Serious Diseases, Chapter 203A, note 7, and on the ADA
accommodation process, in Serious Diseases, Chapter 203A, note 13.
Not a subscriber? If you would like to order one of our policy
chapters,
go to:
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