Mental Disabilities with ADA

AllianceCU

I am the HR Aide of a small company and we do not have a full time HR person on board with us. Can one of you help me? This is a long story so I will try and cut it down.
Back in May one of our employees Apartment burnt down. In this fire she lost one of her children. We put her on FMLA and she took her 12 weeks. During this time she also applied for Long Term Disability. When her date for return came up we got a note from her Dr stating that she wouldn't be able to come back for a full week after the 12 weeks of aloted time, and that the Dr. suggested that she only come back part time.
After looking through our policys and deciding that we could give her an extra week through our leave without pay. We decided that we could also bring her back with deminished hours. We set up her scuedual to where over a months period she would work her way back to 40 hours a week. During this initial few weeks of her working a couple of things have happened. 1st she qualified and was granted Long Term Disability money. Then today I get a call from her and she tells me that she is bieng admitted into the Psyciatric Ward of one of our hospitals for a nervious break down, and wants to know if her job will still be here, or if we are going to have to terminate her.
Well under FMLA I believe we have done everything we can on that front, but I don't know as much about ADA. I do not know if this would be qualified as a Mental Disabilitie under ADA or not.
If it is what does that mean as far as her job goes. I'm not sure we could show undo hardship to be able to hire someone else into her position. At this point she has no idea how long she would be in the hospital or even if she is going to be able to return at all.
Please help me!

Thank You

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 08-21-02 AT 04:30PM (CST)[/font][p]I assume your company is covered under ADA -- that you have 15 or more employees -- and that FMLA was appropriate, although, you may need to re-check that. What was the specific reason she took FMLA leave? Did the fire result in her being unable to work or was she needed to "care" for her spouse or her children due to a serious health condition? If neither situation existed, then while you may have granted her 12 weeks leave, it wasn't FMLA and she could now be entitled to it. But I assume that FMLA was appropriate.

You obviously have a difficult and heart-rending situation. The employee is out of FMLA and it sounds as if your company is large enough to have any policies in place to deal with lengthy leaves beyond FMLA. And I assume that there are no other laws in your state that give her a right to further leave. Yet, you have a situation in which everything for this employee has essentially fallen apart and now you could be on the verge of telling her you're fired. It sounds further that there is no desire to just grant a leave at this point for whatever reason, including not setting a precedent for other employees or not winding up with a hardship to the company, unless you are legally required to grant a leave.

What does your LTD policy say about an employee in her situation? Is she still entitled to it and do you terminate individuals who are eligible and then offer to re-hire them after the LTD runs out or they become able to work again?
Is documentation of her hospitalization required under the LTD plan?

With the employee just being hospitalized it may be too early for the treating practitioner to determine anything about the employee's ability to return to work.

You are right to take a close look at ADA: one, because you may be able to save her job; and two, it is legally required that you take a look at ADA given what you now know. That doesn't mean that it will wind up that she is ADA protected, or that even if she is that you give her additional leave at some time, that you won't wind up terminating her later.

But right now it may even be too early to start the ADA interactive process. That's where the LTD comes into play. It may give you the time and her the time for the doctor to make a meaningful assessment of her situation that later can be used to determine if she is disabled under ADA and needs a reasonable accommodation and what it should be, if any.

Under ADA reasonable accommodations, if she is ADA qualified, could be leave -- not indefinite but reasonable leave; part-time work is another accommodation if you have part time position. Further, under ADA, an employer is NOT required to create new jobs, including part time jobs if they don't exist now; or to fundamentally change a job so that the essential duties of the job are removed.
Remember the purpose of reasonable accommodation is to allow an ADA-qualified employee the opportunity to perform the essential duties of the job if accommodations are needed. But as I said, it is too early probably to make the ADA assessment.

Start with the LTD and see if she qualifies for that because of the hospitalization (of course that needs to be verified). That's the way I would proceed at this point. There will be time for ADA once you get the LTD squared away and follow the LTD procedures.

By the way, some mental conditions do qualify as disabilities under ADA in the same manner that some physical conditions qualify. The condition must significantly impair one or more major life activities. The condition has to be permanent or long term. "Significantly" is compared to the average individual's ability to perform the major life activity.

Good luck.

AllianceCU

Lets see if I can answer some of your questions.
We do not have any policies in place for long term leave past FMLA, and there are no state laws that apply.
I think we would like to be able to keep this person employeed with us because she is a good worker and those are hard to find right now, but we do NOT want to set a precedent by any means and would much rather make sure what we are doing is legaly sound and that we are not just doing something because we 'want' to.
As for the LTD, she started getting that BEFORE she was hospitalized. We have no kind of policy that states because she is on LTD that we will term. And as long as she continues to pay the premium for the LTD she will continue to recieve money.
So that brings us to the point that we either need to term her now and let her re-apply or find out if ADA will allow us to keep a spot open for her legaly. I do not see any way for us to use the LTD at all.
Thank you for your help, any other ideas would be welcomed.

Hatchetman

Well, then start the process to determine if she is ADA qualified and if so what reasonable accommodations woudl be do-able that would allow the emplyee to return to work now or in a reasonable period of time.

You won't know that until you get some informaiton from the doctor about when he or she thinks that the employee can actually work.

Remember, indefinite leave or open-ended leave is not reasonable under ADA and you don't have to create a new job or bounce out an employee in an existing job to let her return to work. And you're not required to get repeated leaves under ADD either. At some point, further leave will no longer be reasonable and you would then be able to terminate. All this is without knowing if she is actually ADA qualified and what the doctor will say about her condition.

Can you discuss this we the emplyee? Are there family members that can act as intermediaries or help out in providing information?