Essential job function & FMLA

pecohr

We have an ee who rotates (several times a week) into a regular essential job function (calibration). The position entails assembly and then calibration of a product. All employees in this position (Assembler) do these functions. (it is stated that this is an essential job function in the positions job description)

Our ee has received a permanent restriction from her doctor stating "no calibration". We've tried to get the doctor to work with us to find a suitable accommodation but he is adamant, "no calibration" period, as they cause the ee to have migraines (sometimes).

We don't want to significantly change the jobs essential functions to not include the calibration step as it really is essential to our assembly process.

My question is: this ee now goes home when a migraine hits her (added to FMLA and counted as intermittent time missed toward 12 week coverage). Can we continue to put her into the scheduled rotation and then when she is scheduled to calibrate have her go home and count it as FMLA related time missed?

Thanks,

hrqueen

What would be the purpose of doing this? I don't think the employer should schedule this employee for work her doctor specifically restricted her from doing. Can she be reassigned to another area? Could you schedule her to see a specialist (neurologist?) of your choosing to get another opinion?

Don D

Knowing I risk being stoned, it might be that the ee is terribly uncomfortable with the task of calibration and has gotten her doctor to go along with the possibility that it causes migraines. (This subject always gets me in trouble on the Forum. I said MIGHT. In any event, it is an essential function of the job and you should not craft a separate job especially for her to the detriment of morale and the functionality of the organization. Knowing that migraines typically can trigger ADA, you are required to consider letting someone else do the calibration if in fact that is a minimal function of the job. Are you sure about the 'essentialness' of your job description? You are free to consider the accommodation of transfer but are not required to do that if you have good reasons not to. It would indeed be terribly unwise to schedule her for an activity knowing full well that it is against doctor's orders and will likely trigger a medical event. Boy oh Boy, don't do that! As always, check with an attorney before considering terminating anyone who has probable FMLA or ADA protection. On my own I will try to understand how simple calibration activity triggers migraines.

njjel

Sounds like an ADA issue here. However if she isn't able to perform an essential part of the job and there's no accommodation........

Hatchetman

If you're saying it's an essential funciton, you shouldn't be deleting it from the responsibilities of any employee who does the job. If she is disabled and needs reasonable accommodation to do "calibrate", that's different--but she still needs to do it. It's just a question of how it will be done.

If you totally remove the essential function then what you are in essence saying is that it's NOT an essential funciton.

A function has several conditions to it that help determine whether it is essential or not. The job exists to do that function. Without that function the job becomes another job. The function is performed frequently. There are other indicators to show that a function is essential. But certainly if you don't require an employee who holds the position to do the function, it's not essential. See the ADA regulations at the Code of Federal Regulations volume 29, Section 1630.2(n).

So removing the function permanently would be inappropriate. If she is unable to do the job because of a serious health condition that occasionally flares up to create the problem, then take a look at intermittent FMLA leave. Or maybe there is a reasonable accommodaiton that would allow her to "calibrate" without incurring migraines. If the doctor won't provide information, try other sources -- Job Accommodation Network. An occupational health service. You're not limited to just the doctor's input to determine what would be reaosnable accommodations for this employee to allow her to "calibrate" without incurring migraines. I am assuming that she falls under ADA with a qualifying disability (migraines have in particular been held to be a disability because they can significantly impair an individual's neurological and/or cardiovascular system).

System

Seems like a whole mess of things going on here. :-?

Her real medical condition -- Is she exaggerating? I agree with DonD that some employees use a medical condition to shirk work (I've been on crutches for five weeks, so I can say things like that). Or is her doctor going overboard? You might want to get a second opinion.

ADA -- is it a disability? If so, is job rotation an essential function (I've seen courts rule both ways, depending on the facts of the case). Frankly, I wouldn't mention the ADA to the employee if she hasn't thought of it.

Workers' comp -- is it covered under your state's law?

James Sokolowski
Senior Editor
M. Lee Smith Publishers