Inherited Situation
Rockie
2,136 Posts
Have an issue that I inherited. We have a nurse who had open heart surgery back in 1998. Accommodation was made for her to work 20 hours per week in order for her to be able to not over exert herself. She usually works Monday, Tuesday, Thursday and Friday to make up her 20 hours and takes Wednesdays off.
Lately, she has been calling in more and more and since the first of the year, she has not averaged 20 hours. If she is sick on one of her work days, then she will not come in on her Wednesday off. She does nto schedule her doctors appointments on her off time, so that further takes away from the 20 hours she is supposed to work a week.
She is under a disability policy with our company that makes up the hours and pays her for the hours that she does not work to make up the 40 hours a week she was working when she became disabled. There is really no incentive for her to work because the insurance makes up for the hours she does not work.
To make matters worse, she has a sick husband and also an adopted child she is trying to care for.
We have now reached the point where she is not keeping up with her work and others are having to step in and pick up the slack that she is leaving because she is unable to work the 20 hours a week.
Question is: how much more of an accomodation do we have to make for this individual before we have to determine that she cannot perform the essential functions of the job? We have tried everything to make the job as easy as possible. We are beginning to wonder if this is a case of is she truly disabled or is this just a convenience for her? We are at the point of trying to determine if she should not just go on total disability and be done with it so we can get someone else in to do the job.
Thanks for your help.
Lately, she has been calling in more and more and since the first of the year, she has not averaged 20 hours. If she is sick on one of her work days, then she will not come in on her Wednesday off. She does nto schedule her doctors appointments on her off time, so that further takes away from the 20 hours she is supposed to work a week.
She is under a disability policy with our company that makes up the hours and pays her for the hours that she does not work to make up the 40 hours a week she was working when she became disabled. There is really no incentive for her to work because the insurance makes up for the hours she does not work.
To make matters worse, she has a sick husband and also an adopted child she is trying to care for.
We have now reached the point where she is not keeping up with her work and others are having to step in and pick up the slack that she is leaving because she is unable to work the 20 hours a week.
Question is: how much more of an accomodation do we have to make for this individual before we have to determine that she cannot perform the essential functions of the job? We have tried everything to make the job as easy as possible. We are beginning to wonder if this is a case of is she truly disabled or is this just a convenience for her? We are at the point of trying to determine if she should not just go on total disability and be done with it so we can get someone else in to do the job.
Thanks for your help.
Comments
You've got a couple of things apparently going on here that yo need to resolve, as they seem to be a concern.
1) You mention she has an ill spouse. Is she needed at home to care for him? Is FMLA or similar state law applicable? Have you determine that any of the absences are due for that reason?
2) Were the reduced work hours arranged as part of a ADA (or related state law) acocmmodation -- i.e., was she determined to be disabled under ADA because of the reocfery from the surgery that went beyond FMLA at that time? Has there been any discussion with her over the last four years about restoring her to a regular work schedule? Have you conferenced her about her absences, even with the reduced work schedule? What's your policy and practice on employees with poor attendance?
You've got to sort things out to determine what you may and may not do, as well as what you need to do. Right now, you don't have sufficient information that you put in your post.
It seems the $64K question is: When did you last get a medical certification from her doctor? After all, 1998 was a long time ago and medical facts can change during 4 years. I'd start there to make sure she is still "disabled." I'd send the employee a letter with an attached copy of her job description, an ADA checklist and a Certification of Health Care Provider form for FMLA coverage. I'd tell her to present them to her doctor and that we require a response from him/her within 15 days. I'd candidly tell her, no certification, no more disabled status. In the meantime, I'd go forward with FMLA and treat her accordingly pending the return of the certification form.
Essentially, our ADA checklist is a form that lists various activities (stooping, kneeling, pushing, talking, grasping, hearing, visual acuity, working conditions, etc.). The supervisor checks the appropriate activities assocaited with the employee's job. The form is then given to the employee, with the job description, for the physician to better understand what the employee actually does to perform the job.
The medical certification form I referred to is the US Department of Labor's FMLA form WH-380 (Certification of Health Care Provider). It asks such questions as what are the medical facts, when did the condition commence and its probable duration, it asks for an estimate of the number of treatments the employee will need, if treatments will be provided by another physician, is the employee unable to perform work of any kind, will the employee need care intermittently, etc. I believe you can download it from the DOL's web page. If not, call them and they'll gladly send you some.
Once you receive the certification from the physician, the facts indicated on the form should clearly disclose whether the employee is "disabled," in need of intermittent leave, etc. Based on that, you can determine if an ADA accommodation is/isn't in order. Meanwhile, "back at the ranch," the FMLA clock is running.
I have used the DOL WH-380 for FMLA and it seems to address serious health conditions, incapacity and treatment; but it doesn't mention disability as defined by ADA. I guess that is where I get distracted. I have job descriptions and a work restriction form that address posture, motion, lifting and general work restrictions. But again, nothing that medically certifies a disability. I am probably looking for the miracle form that takes the monkey off my back and places it on the doctor!!