ADA, unable to work at all

System

I have an employee that is out on FMLA for a psychiatric reason. We approved the FML based on medical cert from the doctor. The doctor originaly said she could return to work today, and we've not had updated info from the doctor. The employee is now saying she can't possibly return to work, she cries all day etc. Her FMLA will be up in 2 weeks and I am not sure if she is unable to return to work what I need to do. Does it depend on the doctor saying she is unable to work at all, can she "self diagnose", can we terminate at the end of 12 weeks FMLA if she says she is unable to work at all? How does ADA work if the employee is unable to work at all? We want to terminate for many different reasons but know we need to be careful. Help!!!

Gillian

If she self-diagnoses and self-quits, then there isn't a problem. Without that though, you need medical certification. The ADA is probably not an issue if the doctor days that she can't work at all. If she can't work, then she doesn't qualify as a protected person under the ADA.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 02-03-03 AT 06:10PM (CST)[/font][p]It's too early to say.

Assuming she qualifies as ADA disabled, or any similar law in your state, further leave MAY BE a possibility as a reasonable accommodation. But right now
you don't know if she is unable to work even if she had a reasonable accommodation.

An employee is not ADA qualified if he or she isn't able to perform the esential duteies even with reasonable accommodation.

Under ADA, a reasonable accommodation could be further leave if it would allow the employee to return to work with or without further reasonable accommoation and no other accommodation would permit the emplyee to return to work at this point. Leave is generally considered one of the last accommodations that should be tried.

So, at this point, you may need to evaluate for ADA qualifications (since FMLA and ADA criteria are different). This would include contacting the doctor and obtaining information to establish that the employee is ADA qualified, and information from the doctor as to what would be reasonable accommodaiton (send the doctor a job description and ask how the medical condition affects the employee's abilities to do the job.

An employee may self-disclose a known or supsected medical condition but self-diagnosing is something different. You would need medical information to substantiate the employee's "claim."

So, start the interactive ADA process and establish if the employee is ADA disabled. Find out if the "unable to work" is a permentt istuation or the employee just needs more time before being able to return to work (if so, does your comapny grant non-FMLA medical leave?).

Don D

I don't think I would start the ADA interactive process unless and until the FMLA limits are exhausted. It might be a bit premature to have assumptions that she will not return after 12 weeks. I would send a registered letter, if you have not already, telling her where she is with the FMLA limitations and restating the procedures of your FMLA policy, one being that she is scheduled to return to work at the end of the eligible period. I would not mention ADA or reasonable accommodation in that letter. It becomes a record for her attorney's use if you do. Often, an employee being reminded of the rules of the program and the expectations that one will be returning to work, has the miraculous result of the employee returning to work. Probably upwards of 35% of your workforce is, has been or will be diagnosed as depressed. HR people, however, are immune from that diagnoses.