ADA, FMLA OR WHAT????

5560905

This sounds basic, but I've found that with ADA and FMLA, NOTHING is as simple as it seems.

I have a hotel room attendant who has been with us for three years. To this point, she has had no attendance or tardiness problems. However, over the past two months she has had two absences of over a week in length. Upon returning from the last absence, the employee brought a doctor's note that states her medical problem is likely related to exposures at work. She indicated to her supervisor that the cleaning chemicals bother her. Since use of cleaning chemicals, exposure to dust, etc. are essential to the job of a room attendant, I don't know where to go with this.

She is not qualified for any other work in the hotel.

To this point, we have treated her problem as medical leave. Should I require FMLA certification and track her intermittent absences. We're a small organization and her absences are causing operational problems. When she is at work, her performance is marginal. Her supervisor wants to terminate, but I don't think we can do that. I'm also concerned with the Worker's Comp implications - that this will end up with a disability claim on Worker's Comp.

Please, anyone, give me some direction here>

Thanks.

Don D

You should have already filed this as a work comp claim. The doctor's statement that it is likely related to exposures at work is the key. I would also initiate the FMLA process and count as intermittent leave any related absences. You will also have to list the absences on your OSHA log if they are related to chemicals in the workplace. Check the MSDS of each chemical she comes in contact with to research this. You apparently have a multiplicity of governmental labels descending on you all at once: FMLA, ADA, OSHA, WC. With this much of a spider web surrounding this worker, I would have a conversation with an attorney.

marc

Nothing is simple in the triangle anchored by ADA, FMLA, and WC. As to FML, you indicated you are a small company. Do you have 50 employees within a 75 mile radius? If so, you just jumped over the first hurdle. You said the worker has been with you 3 years, which meets one of the EE eligibilities - the other EE test requires 1250 hours worked in the preceding year.

Once you have determined whether or not the ER is subject to FML and the EE is eligible, you must meet the medical condition test. The situation may or may not meet the medical necessity test - give the EE the DOL paperwork that requires the medical service provider to determine the FMLA qualification.

I doubt this qualifies as ADA but if you are uncertain, the Doctor should take a look at the job description and the specific supplies the EE uses in her job and determine if any of the supplies are causing the problems. You may be able to use alternate supplies that do the same job for the same price.

As to workers comp, you have lots of professionals who get paid to determine if any of this is work related, let them do their jobs and make the determination.

As to the performance issues, are they just now coming up because of the absences? Has the supervisor documented the marginal performance? If not, you may be facing retaliation charges, which, in my opinion, would not go well for you in the circumstances you have described.