ADA After FMLA Exhausted

Rockie

Need some guidance with a complicated question.

Had an employee who went out on a routine hysterectomy. Evidently, there were complications involved. She has had to have follow up treatments. She exhausted her FMLA after surgery. The office has accomodated her schedule for radiation treatments. The radiation caused some other complications, etc. We have tried to work with her on this.

This is an office that needs to have this position filled in order to function properly. We are going to hire a part time person because we need one anyway for this office. If we need to go ahead and make this part time person full time and fill the full time position, would there be any legal problems with this?

We can work with this vacancy up to a point. Our policy states that under certain circumstances, we will allow employees to be out an additional six months, but reinstatement cannot be guaranteed, but we will make every effort to place them in an available position.

The employee has informed me that this is not acceptable to her - that she has worked for us for a long time and will not be pushed out of the door because she got sick.

My question is...how far do we go to accomodate individuals like this? We make every effort to try to be fair and compassionate, but we also have a business to run.

Any advice would be appreciated.

dhnyct

[font size="1" color="#FF0000"]LAST EDITED ON 08-24-01 AT 07:03AM (CST)[/font][p]Talk about being between a rock and a hard place....running a business AND being a compassionate employer. Don't know her employment/performance history, but losing her might even affect overall morale. How have her co-workers responded thus far? We had a similar situation that had many of our employees looking for creative ways to assist and support a well-liked, respected, and valuable co-worker.

Bottom line is staying within company policy and legal requirements without setting precedents that could haunt you later. Sounds like she may still be out for an undetermined amount of time, which might qualify her for some level of disability. Even reasonable accommodation under ADA only goes so far.

Her statement regarding planned arrangements being "unacceptable..." sounds like a threat. I'd proceed with caution under the guidance of legal counsel.

Gillian

Ditto to the other response. This is legal advice time. Missteps with long term employees has no good points.

Gar

First, what have you done in the past in similar situations? Second, look at all your options. Are you willing to give the employee the additional 6 months in view of her length of service with your firm? Do you have Long Term Disability (LTD) that she can take advantage of? This doesn't appear to be too difficult. I suggest you map out a reasonable strategy and proceed accordingly. All things being equal, it sounds like you'll end up keeping her.

Pat Dalton

Based on the description you gave of the situation, I assume this person has Cancer, which is a covered disability under ADA. According to EEO....if you have given a covered a Leave as a "reasonable accommodation" for a disability, you cannot hold them to the same leave time as other employees. According to the Enforcement Guidance: "Reasonable Accommodations under the ADA states, "If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position or (2) granting additioal leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation" It goes on to say, "If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave can be returned to this new position. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued leave is not required as a reasonable accommodation if a vacant position at a lower level is also not available.
In terms of how long this goes on....it varies but you do have some things that are required. You can require the employee to provide periodic up-dates from their physician regarding prognosis and anticipated date the employee may return to work. Each time you get an update you review the situation again to determine whether the situation poses an undue hardship.

Rockie

There wasn't a question of whether we would have a position for her, it just wasn't the same position she was in when she left - it may be a lower level and it may be part time. She was very adamant that she would not accept anything less that the exact position she had and no one was going to "force her out of her job." This is a person we have bent over backwards to accommodate and will continue to accomodate her, but just not with the same position she had if it comes to that.

I have another question about FMLA. If a company does not qualify for FMLA (less than 50 employees) and someone is out on leave indefinitely and then decides to come back, what, if any, obligations do we have towards the employee. I know they are not covered by FMLA. If the job has been filled in the interim, can we offer a lower level job if we have it available? Thanks for the help and info!

System

Your first question really boils down to this: Is X amount of leave a reasonable accommodation? The answer depends entirely on the facts. On one extreme, I remember a court saying a really long leave (one year, I think) was reasonable because it was easy to get temps to cover for her.

As for your second question, it sounds like you wouldn't be obligated to rehire the employee at all, unless they're covered by ADA, workers' comp, military leave law, etc. Last time I checked, South Carolina didn't have its own family leave law (but don't take my word for it).

Since you're in South Carolina, I believe it's grounds for immediate dismissal if either of these employees is a Clemson fan. If they're USC fans, give them job security (with Saturdays off).

James Sokolowski
Go Gamecocks!
M. Lee Smith Publishers