Chronic Fatigue? ADA qualified

Mikki H

I cannot find information if a diagnosed chronic fatigue syndrome would be covered under ADA. We have an employee that is calling in to be 1-2 hours late, saying she needs more sleep due to this condition. Sometimes she needs to go home early or she has overslept during her lunch hour.

We have already adjusted her start time back 1/2 hour, but her job is critical to be one the early starts (7:30a.m.) or else no one else can begin their jobs for the day. We have not yet asked for a medical certificate on her condition, but plan to if this condition qualifies under ADA.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 05-10-01 AT 03:02PM (CST)[/font][p]ADA, the EEOC guidelines and regulations, court rulings do not specify that any particular medical condition automatically qualifies as a disability under ADA (although HIV may be an exception). ADA requires case and fact specific determinations. That is for each individual claiming to be disabled or seeking reasonable accommodation under ADA, the criterion of "medical condition that significantly impairs or more major life activities" MUST be met. Court rulings that find a particular disease or impairment, for example, to be a disability only apply in that specific case because of the conditions of that individual (the same goes when rulings find that the individual is not disabled). There was a federal appeals case that held that for a particular individual, chronic fatigue immune syndrome was a disability. But that doesn't mean that it's a disability for your employee.

You would need to make the assessment if the employee is asking for reasonable accommodation based on a claimed disability. However, if you have accommodated her already by changing her working hours BECAUSE she claimed she was disabled (even if she is not), then you have treated her as disabled and that is one of the qualifying conditions for her to be accommodated and ANY factual assessment is now irrelevant. If you changed her hours as you would do for any other employee, then, it seems to me, that there is NO basis that you regarded her as disabled and a factual assessment needs to be done.

ASSUMING, for my response, that she is disabled under ADA and needs reasonable accommodation to help her perform the essential duties of the job. If one of the essential demands of the job is for her to be at work no later than 7:30 a.m., and NO reasonable accommodation would allow her to do that, she would no longer be considered ADA eligible. Remember, the purpose of a reasonable accommodation is to allow the employee to perform the essential duties of the job. If she can't do the essential duties with reasonable accommodation or there are no reasonable accommodations that would allow her to perform the essential duties of the job, she is not ADA eligible. But as with determining disability in the first place, reasonable accommodation is a fact-specific determination. What may be a do-able reasonable accommodation for one employee in one job may not be one for another employee in the same job.

Again, ASSUMING the employee is ADA eligible at this point, you would need to assess with the employee's input what reasonable accommodation may be do-able without being a hardship. Her doctor could also provide input. And there may be "chronic fatigue" associations that can provide some information. Remember, there may be several accommodations that would allow the employee to meet the essential requirement that she be at work 7:30. Just don't reject the concept until you've considered what's do-able and effective.

Since the employee's "chronic fatigue" is not an obvious condition, your best approach is to wait for her to link the attendance/tardiness problems to a claim that she has chronic fatigue rather than making the connection. Don't assume that she is late or has to go home early because she has a disability whatever it is unless it is obvious or previously KNOWN to you. If she doesn't raise reasonable accommodation directly by asking for a change in working conditions because she has chronic fatigue or any other medical condition or raise it in directly by explaining her poor attendance and tardiness problem as being caused by chronic fatigue, then again, DON'T assume that it is the cause of any problem.

Mikki H

Thanks for the response. A question in clarifiation: As I understand your comments, since we have accomodated her request for a later start time in the same fashion that we would for any employee who needed a change of schedule, we are not "locked" into an ADA situation and should conduct further investigation.

She has already commented to her supervisor that she has this condition and it makes her very tired during the day and that being able to try to sleep in later would be beneficial. She also has stated that this condition makes her prone to catching colds (which has also procduced many absences). There has already been documented warnings regarding the tardiness and absence issues and I am worried about how far we can go with disciplinary procedures.

Beyond hiring another employee to take over this main duty, or trying to rearrange the duties of several other employees, there are no other accommodations that we can think of.

I guess this would be the time to consult legal counsel?

Hatchetman

Now that she has raised a possible ADA issue of a disability, you need to determine if she is ADA qualified. Her poor attendance can still be dealt with but first you would need to demonstrate that, if she is ADA qualified, reasonable accommodations still did not result in satisfactory attendance; i.e., they were NOT effective. An essential requirement of the job has been held to be satisfactory attendance, PROVIDED the employer has made it known to the employee and has held non-disabled employees to the same expectation. If she isn't ADA qualified, then of course you can deal with her attendance as you would any other employee. I wouldn't do more on the attendance issue until you've made the ADA assessment of qualification, and if so, what reasonable accommodations would be effective and tried.

It still may be too early for the legal consultation. As long as you have not accommodated her on the basis of a claimed disability, I don't think that you have treated her as disabled. But that doesn't mean that you are off the hook on ADA. From what you posted, she has linked at least one work problem to a medical condition--her tardiness/poor attendance. That's enough to start the ADA process to determine if the medical condition rises to the level of an ADA disability and, if so, what if any reasonable accommodations are available, do-able and effective. Part of that is going through the famous "good faith, interactive process" that includes getting her input on what would be reasonable accommodations to allow her to perform the essential duties of the job.

Mike Maslanka

this is a good discussion...i do differ however with the approach that you must make a determination at the outset if an employee falls within the defintion of being ada disabled...if an employee has an impairment,and you try to work with them on how it affects their job,you are not going to get tagged with a regarded as claim UNLESS you try to play doctor and tell the employee that someone with their condition is going to have a hard time doing in life what most of us take for granted...i think looking at any employee request--no matter what causes the request---and seing if it can be met is legally smart and hr wise...regards from texas,mike maslanka