fmla expiring for depression

bbhlaxmom

We have an employee that is within hours of her FMLA expiring after being out for depression. She has been in and out of work depending on when the doctor says she is able to work. When her time is up, do we have to enter the ADA process or can we term her? We have termed other employees for their fmla running out but never someone with mental disability. If she askes for leave of absence for a reasonable accomodation do we have to grant it? I can't hold the position for her any longer. When she Does manage to come to work she needs to be retrained and her work is awful! This is a real liability for us as our clients expect standards of work that she is unable to maintain. She is also on medication that makes her really "out there" and it's creating dificulties with other employees. Is there a legal way to term her now?

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-29-04 AT 07:29AM (CST)[/font][br][br]The answer to your first question is yes. You are required to enter the ADA interractive process. Her condition is probably ADA qualifying IF she is able to work. In order to be protected by ADA she must meet the two pronged test: She must first be a qualified individual. This means she is qualified to do the job and can do it with or without reasonable accommodation and part of that means showing up for work. Then she must meet the second part, 'with a disability' as defined by ADA. I assume her to meet the second, but am not sure about the first. That's the function of the interractive process, to determine that.

As to whether a leave of absence would be a reasonable accommodation, that depends on what she does, the necessity for her to be there, what your practice has been in the past and the consequence to the company of granting such a leave. Leaves of absence are not required under ADA.

The part about having to retrain her and her work being horrible won't fly this early in your analysis. If it turns out that she cannot perform the duties of the job and you would have to spend an inordinate amount of time training her to do what she already knew how to do, that would not be reasonable and she would not meet the definition of 'a qualified individual'. As to her work being horrible, that must be dealt with through your normal policies and procedures.

The answer to your second question; Is there any way to legally terminate her now?, is probably NO. I can't think of one based on what you provided.

Hope this helps.

Rockie

We went through this last year at our medical practice with a nurse who had this same problem.
Her supervisor took away most of her duties that were patient related so as to give her a chance to get herself together so that she could function as a nurse again. She was in and out on FMLA 2-3 times and when that expired, we started the interactive process with the ADA. She came to the point where she felt she could come back and perform the essential functions. I sent a list of the essential functions to her physicians and both a psychiatrist and her primary care doc said she could do the functions. (I have found they will rarely say otherwise).

I advised the employee her physicians stated she could do the essential functions and when she returned to work, she would be expected to perform the essential functions of her nursing position. She could not and we advised her that she could not perform the duties of her position. Fortunately, she agreed with this assessment and, in fact, had been looking for another position prior to her attempting to come back to work for us. She worked 3 days at her new job before being terminated.

Don D

Rockie: This is a sad tale. Was there no other position in the company that, based on her knowledge, she could have performed? I know that wasn't required. Just wondering.

Rockie

I agree. This was a very sad situation and one that we worked on for months trying to resolve. We looked for something else for her to do. She was an RN, but we didn't feel secure putting her in any type of clinical setting where she had to work with patients such as a medical assistant. We considered putting her in a scheduling position, but she was not interested.

We were hoping her new job would work out since it was a less challenging and stressful environment, but unfortunately this didn't work out for her.

Unfortunately, this was one of those cases where you did not particularly like your job that day!