ADA leave accommodation

CathyMac · March 2006

Some of you may recall my posting a couple of weeks ago regarding the employee who does not have sick leave or vacation leave and is not yet eligible for FMLA, yet has a provider's statement that she cannot work due to her serious medical condition (depression in this case.) I've now had an independent provider tell me the same thing...that the EE is not able to return to work.

My question --now what? Do we just continue to let her have LWOP while maintaining her benefits? SHe's eligible for FMLA on April 4... do I just send the FMLA paperwork then & grant FMLA at that time????

Also, now that we've requested the independent assessment (which we'll pay for I know); do we have to pay for subsequent treatment from that provider? I did not authorize treatment; only the assessment.

Incidentally, we have not said the EE has a disability.... so, no ADA accommodations needs have officially been determined.

NaeNae55 · March 2006

I seem to remember reading about a case where they fired the employee for being off to much for sick leave just before they were eligible for FMLA. The court did not take kindly to it. I think it is too late to term this employee.

On April 4th she will be eligible for 12 weeks of FMLA, even though she has already taken off so much time. It sucks green turkey feathers, but that's the way it is.

You are not responsible for any continuing treatment costs. If I were you, I would go the extra mile and make sure the employee knows it. She might think that because you sent her to this provider, and the provider suggested that she come back, that you are taking care of everything. Make sure she understands so you can cover your behind.

Finally, think about what your company wants to do in the future if such a situation should arise again. Get it in a written policy. The sooner you do it the better, as it is remotely possible you will need it for this employee. If you have a policy that limits LWOP (except for FMLA) within a specific time period (say 1 year), then if she takes off again for a non-FMLA reason you can act.

Good luck!

Nae

stilldazed · April 2006

Sounds like you are talking about only a few days at this point, and if no decision has been made yet, I agree that it's probably too late to let this EE go. I would send the FMLA paperwork with a tentative designation starting 4/4.

You do have a couple of considerations:
1. You company's policy on absences w/o FMLA protection and/or time off to take. What is your company's policy? If it's not clear, this may be a good time to review and revise as needed.

2. Benefits continuation. What is your company's policy on benefits continuation (i.e., continued by the company when not 'legally' required to do so? You can always Cobra using the reduction in hours as the qualifying event and shift the burden of maintain insurance to the employee. If the employee can return to work (before or after the 60-day window), use the change in hours again to bring the employee back into the employee benefits plan.

ADA may not be an issue yet, but you are wise to think of it. The diagnosis itself is not the primary consideration with ADA, but depression may be severe enough to prevent the employee from performing one or more life activities. Remember, ADA is a case-by-case consideration. And all your company is required to do is consider whether an accomodation (if it is determined that ADA must be considered) is reasonable.

As a warning, you included the diagnosis in your post. You haven't really breached any confidentialities in your post, but an employer's access/knowledge of the diagnosis in non-workers' comp situation should be very limited. I would take great care that that particular detail be very guarded in your work environment. If it isn't, you may find yourself with another issue on your hands--HIPAA, discrimination, hostile work environment. After all, HIPAA warns agains unauthorized disclosure of PHI, and, like it or not, depression does still have a negative stigma attached to it.

As far as the independent assessment is concerned, hopefully you didn't use the employee's physician. If you didn't, there should not have been a physician/client relationship established by the visit. If there is any doubt, get the physician to note that statement and include a release in future referrals that includes that statement.

Good luck,

CathyMac · April 2006

Thank you so much for the information. I do have a couple of follow up questions:
1. When could we have termed the EE?
2. On the independent assessment, when we made the request we designated a provider. Not the EE's. However, when we received the letter from the provider, it indicates that the EE saw this same provider prior to our request! (Actually on the same day the request letter was mailed.) Now what??

Thanks again for your help. I am relatively new to HR and your experiences/expertise are much appreciated.

stilldazed · April 2006

For guidelines on when to term, look to your policy for some criteria that are reasonable, logical, justifiable, objective, fairly easy to apply consistently with other folks in the same or similar situations.

As for the referral to a specialist, restrict your payment to the assessment you requested. If you haven't done so already, put the referral in writing and spell out fairly clearly the referral and intended result as well as your company's expectation for payment.

Others who visit this forum may disagree, but I'm not sure I would want to approach the subject of whether the patient/client relationship exists. I'd be curious to hear from others on that, but depending on how rural or populated your area is, you may not have many choices. Hopefully, the physician will be objective, and as a professional courtesy, especially considering that you chose the physician in the referral process, I would think that your employer should show due respect unless you have evidence not to do so.

KathyHR · April 2006

Our policy is once they have exhausted their sick, vacation, personal & FMLA and still are not able to return to work, we terminate. We can't keep the job open as it is a hardship for the company. I've terminated for this twice and both times even won the unemployment appeals that the employee made.
Be careful on the disability criteria. I was just at a workshop & the attorney said the employee doesn't have to use the words "I need an accomodation" or mention the ADA or request an accomodation in writing. The employee could say "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing" or "I need six weeks off to get treatment for a back problem" and that is enough for the employer to trigger the interactive process to identify the employee's limitations & the potential accomodations. But, the employee does have to request the accomodation and they can just use what words they want to and we have to decipher what they mean. Caveat: If the employee doesn't make a request & the employer is aware of the disability & of the need of accomodation, then the employer must begin the interactive process even without an express request. Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004) Fun, huh

ADA leave accommodation

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