How do you handle an employee who needs medical leave but doesn’t qualify for FMLA? One option is to allow the leave as an accommodation under The American’s with Disabilities Act (ADA).
But there are some things to think about first. Let’s discuss . . .
Recent ADA Case Law
The ADA encourages employers to consider a leave of absence as a reasonable accommodation in certain cases, however, the recent case law has some conflicting messaging. There have been many cases that found in favor of the employee when the employer refused to provide or extend a leave as a reasonable accommodation. Then there’s a recent case in the 7th circuit (Severson v. Heartland Woodcraft, Inc.) that found that a long-term leave of absence was not a reasonable accommodation because it did not allow the employee to perform the essential functions of their job. The court went on to clarify that the ADA is an anti-discrimination statue, not a medical-leave entitlement.
That ruling left employers more confused and unsure of how to handle leaves as an accommodation. If you’ve already been providing leaves as an accommodation, changing your practice could open you up for risk. And if you have employees who do not reside in the 7th circuit then you may still need to consider leave as an accommodation. The outcome is still to be determined as disability discrimination cases reach the higher courts in other states. So, for now, let’s just say that a leave of absence could be considered a reasonable accommodation.
Step-by-Step ADA Administration
We see a lot of employers ruminate about whether a leave is a reasonable accommodation, but there are several steps in the process that need to take place before you should explore what accommodation is most appropriate.
Employers often start the process by asking “Is a leave of absence a reasonable accommodation?” But that should actually be the last question.
The questions you should ask, in this order, are:
- Are they a Qualified Individual with a Disability?
- Can they perform the essential functions of their job?
- Is there a reasonable accommodation?
Are They a Qualified Individual with a Disability?
Just because they have a medical condition does not necessarily mean that they are entitled to consideration for a reasonable accommodation under the ADA.
They must be considered a “Qualified Individual” under the ADA. Here’s the definition (source):
“A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation.”
What does this mean in plain English? It means that if you grant them a reasonable accommodation, they could do their job.
The ADA goes on to define a disability as:
“A person with has a physical or mental impairment that substantially limits one or more major life activities . . . “
Major life activities include, but are not limited to, seeing, hearing, speaking, walking, breathing, performing manual task, learning, caring for oneself, and working.
That’s a pretty long list. Many employers are left wondering if there’s anything that’s not considered a disability?
The ADA emphasizes that the word “substantial” as part of their definition is meant to exclude minor impairments from the definition. For example, non-chronic conditions with a short duration such as the flu are not considered disabilities.
However, the amended ADA (referred to as the ADAA) redefines the definition of a disability to include some short-term conditions if they substantially limit one or more major life function. So a broken leg could be considered a disability even if the person will recover in less than 6 months.
Once you have determined that it does not meet the definition of a disability you do not have to continue with the interactive process or consider them for a reasonable accommodation.
Can They Perform the Essential Functions of Their Job?
To be considered a “reasonable accommodation” it must allow the employee to perform the essential functions of their job. That starts with a well-written job description.
A good job description will explain the job duties and experience requirements so that candidates and employees understand the role it plays in the organization. Many companies focus on these two things (duties and experience) and fail to build a job description that will provide clarity and protection when saddled with questions about reasonable accommodations.
Here are some tips on building job descriptions that ease the ADA process:
1. Highlight your “essential functions”. You could accomplish this by putting an asterisk next to the essential functions or separate them into sections titled “Essential Functions” and “Other Job Duties”. But you must be able to clearly identify them.
What’s essential? A good rule-of-thumb is that anything that the person spends more than 10% of their time doing is considered essential to the role. If they are responsible for moving copy paper from the storage room to the copy room on a daily basis, then it’s probably an essential function. If they do it twice a year, it’s probably not.
2. Don’t overlook soft skills. Is it required that all your employees be able to interact with their coworkers in a professional and respectful manner? Put that in the job description. Are they required to interact with customers in a polite way or in accordance with your customer service guidelines? Put that in the job description. That way, when your employee is unable to perform those functions due to a disability (such as Tourette’s or something like bipolar disorder) you can clearly point to those essential functions in the job description.
3. Explain where the work is performed. Is travel required? How much? Are they required to work in the office to optimize team collaborations? Is the job outdoors and subject to weather conditions? Is your factory air conditioned or are they working in a high heat environment? All these things should be answered in the job description.
4. Consider safety and security. The security guard in your bank branch may spend most of their days sitting by the front door looking bored, but would they be required to respond with standing/walking/running if necessary? Yes. So, put that in the job description.
5. Job-specific physical requirements. Of course, your lifting and ambulation requirements should be in the job description, but don’t forget to consider other physical requirements such as the ability to see color for graphic designer jobs or food allergies for people working in a restaurant. Those nuanced physical requirements may seem so obvious that they don’t need to be listed, but if you have them clearly stated in your job description then you minimize the risk of any ADA issues.
6. Regular attendance or punctuality. Is regular attendance required to perform their job? How about being on time? If they are a store manager and they’re responsible for opening or closing the store, then reliability and punctuality is absolutely required for the job. If they are an exempt accounting professional and otherwise able to perform all their job duties, then punctuality is not something you need to list in the job description.
Is There a Reasonable Accommodation?
It’s crucial for employers to go through an “interactive process” with their employees when determining the appropriate accommodation. That may mean multiple conversations to explore options that meet both the employee’s and the employer’s needs.
Here are some considerations as you work through this process with the employee . . .
1. Undue Hardship: The ADA says that an accommodation for the employee must not put an “undue hardship” on the employer. We see a lot of employers use this far too liberally to avoid providing accommodations. Is purchasing a special computer screen for your employee with a visual impairment so expensive that the company might go belly-up? No, it’s not. How about an ergonomic chair? No, even the really expensive ones will not cause an undue financial hardship on the employer.
Undue hardship exemptions are reserved for things that would substantially change the nature of the work or be unduly disruptive.
2. Safety concerns: Especially in manufacturing or health care, it’s important to consider if the accommodation will be a safety hazard for the employee, their coworkers, or customers and patients. If it is a hazard, it may be grounds to deny an accommodation.
3. Alternate Accommodation Options: When you start the ADA process, you’re probably gathering information from the employee and from their doctor, including their recommendations or ideas about the best way to accommodate them. Most of the time, their ideas end up being the best solutions (who knows their needs better than the employee and their doctor?). But it’s important to keep in mind that the interactive process allows you to explore all options, not just the ones that are initially presented.
For example, if an employee has a chronic back problem and their doctor recommends a standing desk, along with a picture of the standing desk mechanism that they prefer, you’re not required to purchase that exact desk for them. You could work with the employee and your facilities department to find another standing desk option that meets their needs.
4. Essential Functions: It’s worth repeating here that well-written job descriptions play a key role in determining reasonable accommodations for employees with disabilities.
Doctor’s often don’t know what an employee’s job entails (even if they are provided a copy of the job description) so their notes and recommendations may be based on the employee’s ability to function overall and not the employee’s specific job duties. It’s important to differentiate the two.
For example, a customer service representative is diagnosed with epilepsy and their doctor is recommending that they not drive for three months while they adjust to their medication. To accommodate this, the doctor recommends they be allowed a leave of absence or to work from home for three months. Not being able to drive will no-doubt make it difficult for the employee to get around, including getting to and from work, but it does not interfere with their ability to perform the essential functions of their job. In this situation, driving is not part of their job so there is no accommodation to make.
5. Leave as an Accommodation: Similar to our recommendations above about exploring all accommodations options, just because a leave of absence is what the doctor recommends does not mean it’s the only one to consider. If you have light duty work available, then you may be able to allow the employee to work within their restrictions. It’s still an interactive process so make sure that the employee and their doctor agree that the light duty work is appropriate for their condition.
If a leave of absence is the only option, it needs to have a foreseeable end date and be for a reasonable time frame (usually less than 8 weeks). A reasonable accommodation must allow the employee to perform the essential functions of their job. Presumably, you’re granting leave as an accommodation because the time off will allow them to return to work to perform their job in the near future. If their return to work date is not in the near future, then the leave is probably not a reasonable accommodation.
Keep in mind that most courts have supported the idea that you need to give each case it's own consideration, meaning that you cannot implement blanket policies that state that you never grant more than a certain amount of leave.
Let’s apply this to some real-life situations.
Scenario #1: Your Accounts Payable Clerk is in a car accident and they tell you they have a broken leg and severe bruising. They are not yet eligible for FMLA. They ask for two weeks off work to recover.
Remember, the first question you should be asking is not “Is two weeks of leave a reasonable accommodation?” The questions are “Are they a qualified individual with a disability?” and then “Can they perform the essential functions of their job?”
Are they a Qualified Individual with a Disability? Maybe. If the broken leg substantially limits their daily living. You'll need medical documentation to determine this.
If they are not a Qualified Individual with a Disability then there’s only one thing that you are required to do as an employer in this situation . . . you must inform them that they are not eligible for time off under FMLA by sending them the Notice of Rights and Responsibilities form (download our customizable forms here).
Is that all you should do? No. You should still treat all your employees with respect and kindness. Even if you cannot grant them the time off, consider other no-cost, low-cost ways to help them out while they recover. For example, ask one of their coworkers to volunteer to help them carry their lunch to the break room and back. Or allow them to park closer to the door until they get their cast off. Again, it’s not required that you do this, but it goes a long way in showing the employee that you care.
Scenario #2: Your Accounts Payable Clerk is in a car accident and due to the severe nature of the accident, they had to have one of their legs amputated below the knee. They are not yet eligible for FMLA. They asked for four weeks off work to recover from surgery and then the ability to work from home indefinitely because they don’t think they will be able to walk well even after they are fitted with a prosthetic.
Are they a qualified individual with a disability in this scenario? Yes. Their disability will have a long-term impact on their daily living activities.
In this scenario, a 4-week leave of absence is probably a reasonable accommodation. But what about working from home indefinitely? It’s important to review the job’s physical requirements in the job description against what the doctor actually documents as the employee’s limitations. After they recover from surgery, are they going to be in a wheel chair or on crutches? And if so, is there an alternate accommodation to working from home . . . such as handicapped parking or longer break times.
Check out our other articles about what to do when an employee isn’t eligible for FMLA:
Contact Leave Solutions today to find out more about how we can help you build policies and practices that ease the pain of leave administration.