ADA Accomidation
Richard S
23 Posts
[font size="1" color="#FF0000"]LAST EDITED ON 10-24-01 AT 05:39PM (CST)[/font][p]I have an employee who is hearing inpaired. This is obvious because of the hearing aid and slight speech impediment. She has requested an accomadition of leaving work 1 hour early once per week to see her family doctor to adjust her medications. It is my belief that this is not related to her disability. If it was I know that we would work something out with her. I have requested medical documentation of the relevance from her, but she has refused. We have an attendance policy that would allow her, as it does all others, to go to a doctor's appointment by taking a half day off every week forever and she still would never even be written up. She has stated that this is not acceptable, that she should be given time outside of the attendance policy. We do not ask other employees for medical information if they go to the doctor, and accept the whatever comes to them for getting into trouble with attendance. Our policy allows for three half day absences to equal one day. Three one day absences in one month recieves a write up. If she took a half day off each week she would never reach the 9 needed to equal three days in one month. If she is absent for other reasons she could get into trouble though. It is only if she takes other days off would she get into trouble. Do we have the right to demand documentation of relevance?
Comments
You have a policy that allows an employee to use up to half a day per week "forever" during the work week to go to a doctor's appointment -- without ever being written up. But when this employee wants to use half an hour to go to the doctor once a week, your company starts getting upset and demanding documentation that the reason she has to go is related to her disability (which you are surmising; in fact the company may be "creating" a disability for her because of the assumptions).
You are considering her hearing impairment as obvious, right? Even if it were, she may not be disabled under ADA given the US Supreme Court's "Sutton" ruling on "corrective" measures and ADA. That is, if her use of the hearing aid, improves her hearing so that she is no longer SUBSTANTIALLY limited in hearing or in any other major life activity, then she is not disabled under ADA. The only way you can determine that is to get information from the doctor as to the the limitations on her hearing (or other major life activity) WITH the hearing aid and make that comparison to the average person. I supect the impairment probably isn't substantial with the hearing aid.
In short, why hang this up on whether she is disabled or not? Since your policy allows her up to one half day to take off per week for doctor's visits
then approach the problem through that and not worry about whether she qualifies for reasonable accommodation under ADA at this point.
So, back at the "ranch", the cowboys are gathering to go save the townspeople from the marauding bandits.
Square one. She is claiming, in essence, "I need reasonable accommodation because I am disabled. I want that reasonable accommodatin to be to allow me more time off than your policy allows so that I can go visit my doctor."
Square Two (the cowboys are getting on their horses and riding off to town, led by John Wayne, Clayton Moore, and Bob Steele - for older people). You only need to provide reasonable accommodation under ADA (or possibly a similar state law) if the employee is qualified as "disabled." As I said, the fact that she has a hearing aid may mean that she will not be considered disabled under ADA if the impairment to her hearing (or any other major life activity) is no longer substantial in comparison to the average person (but she could be disabled under any state ADA, as it is in California where corrective measures are NOT taken into account). But that takes more information and an assessment based on her specific situation.
Square Three (the cowboys circle the town as the bandits come out of the bank carrying the town's money). If she is not qualified as disabled because she has no significant impairment to a major life activity now that she is using her hearing aid, then you don't have to accommodate her. If it turns out, she is disabled then you would need to accommodate her if she needs an accommodation to perform the essential duties of the job.
Square Four (Wayne, Moore and Steele get off their horses and approach the head bandit, Basil Rathbone, who refuses to give the money back and calls Wayne a "dirty coward"). You need to go through the evaluation process and get the information because if you don't and she files an EEOC complaint, EEOC is going to ask why you didn't make an evaluation. EEOC doesn't like rejection or denial without a specific determination that the employee was not qualified following the evaulation. In other words, it's not so much the final answer you come up with, as long as it is reasonable, but rather the process you used to arrive at it. EEOC expects a "good faith, interactive process." If you conclude after getting the information that employee is not disabled because there is no significant impairment of a major life activity given the fact that she uses a hearing aid, then that's the decision you can point to and the process you used and EEOC most likely will be satisfied.
Square Five (The bandits start shooting and the cowboys get off their horses and shoot back). Let's say you determine that the employee is disabled under ADA and that the doctor indicates that the diability needs to be accommodated so that she can perform the essential duties of the job. You can inquire as to what accommodations he recommends as well as the ONE accommoation the employee wants. Remember, accommodations are to allow the employee to perform the essential duties of the job. While it is a joint effort, done in good faith, the ultimate decision is the employer's. The accommodation doesn't have to be the best, or the most expensive, or even the one the employee wants. It just has to be effective. I suspect the doctor will say, she needs more time off so that she can come to get treatment. You would, I think be on reasonable gournds, to inquire, as you suggested, whether the treatment is in fact related to the impairment or why it can't be done during the other time she already takes off -- this goes to the concept of REASONABLENESS -- remember it's "reasonable accommodation:" not just accommodation.
Square Six (the cowboys begin to take the upper hand in the shoot out). Under ADA, reasonable accommodation includes modification of existing policy. So, it would be possible for the company to provide the extra time as a reasonable accommodation through modificaiton of your exist sick leave policy. But I suspect that once she's called on the issue, and you start offering other suggestions as to how you'll accommodate her, then she'll give up.
Square Seven (The bandits see the light. They throw down their guns, give back the money, and plead for mercy. The cowboys and the bandits go into the saloon and start drinking. The townspepole become worried. End of story). ADA doesn't require an employer to provide indefinite absences or leave for a qualified employee with a disability or to not hold the employee accountable in some way to poor attendance, even if it is caused by a disability, once the accommodations have been established. You certainly can control it. You may want to negotiate something with her on the additional time if you can't find alternative reasonable accommodation. In this situaiton it could be to figure out how long the additional treatment is needed and then peg a maximum time to that. That's do-able under ADA. If EEOC comes around trying to second-guess what your efforts and decision have been, you want to show that you have been reasonable and fair, and acted in good faith to resolve the employee's request for reasonable accommodation.