How would you handle this?

ritaanz

Not sure if this is FMLA or ADA so I'll post here. Employee has severe back pain (not work related) and his doctor wanted to operate. His medical insurance would not approve the surgery stating that he should try other avenues. They gave him 3 courses of action. He tried the 3 suggested remedies one at a time. This caused him to use intermittant FMLA. None of the remedies worked, and presently, he is worst than when he started.

The medical carrier is now approving his surgery. The doctor states that he will require 3 months to recuperate from this surgery.

However, his FMLA is almost all gone. The company's written policy is 12 weeks in any one year. Would this now fall under ADA and can he be granted an accommodation of an additional 3 months? Is the company legally required to give him the additional 3 months?

juju

Just to clarify: your company policy states "one year." Is that a rolling yearor calendar year?

ritaanz

Yes. his year will not be up until sometime in September.

LarryC

Well, Rita, I would have to say I don't believe ADA would enter in for two reasons: 1. It doesn't sound like it's a permanent condition, and 2. I don't believe you have to offer up absences as a reasonable accommodation.

As to your original question, "How would you handle this?" I would, first of all, be thankful that the guy is honest and didn't claim it as work related. Then I would extend medical leave or personal leave to him for the additional three months.

Tish

I agree with part of what LarryC stated. The fact the medical was declining payment initially and the run-around that some medical coverage gives the EE you are very lucky that it suddenly didn't become a work aggravated injury.

As far as extending additional medical / personal leave, you'll want to take in account what you would be setting as a president.

I always stress to management the most humanitarian approach possible. It pays in the long run as far as moral etc.

Good luck.

Crout

I would agree with Larry that this is not an ADA issue, however, I would only grant an additional leave if you have such a provision in your policy. If not, he can resign and re-apply when he gets back on his feet.

ritaanz

I thought of that option to resign. But that would leave him with no income AND no medical insurance. There is no way he could afford COBRA, much less pay for the surgery.

Pork

RITAANZ: Based on our medical coverage policy, an individual with an illness is only covered with personal paid premiums in advance for 6 weeks, as personal time off. At which time the ee must be terminated and offered COBRA. It would be a medical disqualifying event and would have to be terminated based on our company "attendance policy". The individual could then apply for un-employment insurance and Social Security Disability. We have assisted several x-employees to obtain the un-employment claims and a couple of SS Disability. Which is a life time award, if they succeed, and is much better for them and their family as a whole. The individual ee may infact be better off if the company can "get out of the way"! Your company most likely wants to do what is best for the ee, therefore, termination must also be an option to explore with the ee.

By the way the un-employment awards where not chargeable back to our history.

PORK

Whirlwind

I agree that it's probably not an ADA condition now, but if the surgery is unsuccessful and the guy ends up with a permanent condition that "substantially limits etc. etc." then he could be covered by ADA in the future.

Meanwhile, what to do? I'm finding it more and more critical to have a clear policy on whether and when we will allow additional unpaid leave when an ee has exhausted all paid leave and FMLA, so that's something I'm working on right now. In your post, you said your co.'s written policy is 12 weeks in one year. Does that mean your policy specifically states that there is no additional leave to be granted after FMLA is exhausted, or is it just silent on that issue? If it doesn't say one way or the other, of course you're free to give him more time off but - as has been stated - you will be establishing a precedent. I would think long and hard about this guy, who sounds honest and deserving, and then your worst-case scenario, i.e. someone who will milk the system given the slightest opportunity. Then, decide where you want to fall on that continuum of extending leave vs. cutting them off at the end of FMLA, and make that part of your regular, written policy.

deniseE

I would be hard pressed to not give this guy the needed time. Based upon the little information you've provided he sounds like the kind of employee that you'd want to keep, if possible.

But you'll have to go by your policies. Ours is written to provide for additional time (6 months) based upon management's decision and business need. Under our policy, he would probably get the three months.

Don D

We all agree it's not an ADA situation. I think I would recommend an extended leave of absence and worry about the precedent fallout at a later date. I've never heard of an insurance company refusing back surgery unless the MRI showed no evidence of a disc problem. Very odd. I think I'd also bitch out the carrier or at least ask them whose head was up his a**.

System

x}> Devil's advocate here. I think a lawyer could make a pretty strong argument that this fellow is disabled under the ADA. He missed three months of work in the past ten months and is worse than ever. Surgery might improve his condition in the future, but I'm not sure that disqualifies him from ADA today.

If he's ADA, then additional leave might be a reasonable accommodation.

James Sokolowski
HRhero.com

neveradull

I think I would ask a few more questions.
l. As part of his rehabilitation process could he return (say in 30 days)to a light duty position? 2. Would I have a light duty postion to offer? If the answers are yes I would give him the time necessary.

carolgw

At what point is the employee eligible for Long Term Disability benefits?

ritaanz

At our company, LTD kicks in at the 13th week.