ADA and Reasonable Accomodations

Emilyg

I have an employee who has undergone several brain surgeries. Since the last one, she has steadily declined in her position. We have made the following reasonable accomodations: 1)Revised Job Description approved by her neurosurgeon 2) Reduced hours and FTE 3) Assigned several help-mates to her

However, it seems that she is now unable to perform the most basic functions of her job: answering multiple telephone calls, accurately scheduling appointments, etc.

It is our feeling that our reasonable accomodation for this employee has gone as far as it can go and now poses an "undue hardship" as other employees try to cover up for her.

Can we terminate?
Thanks.

Hatchetman

Actually, it's not a question of undue hardship. If you try to demonstrate that you don't have to provide reasonable accommodation anymore because it causes undue hardship, I don't think you would be able to establish it given the generally "high" threshold to establish that.

The real issue is that the reasonable accommodations appear no longer effective. ADA provides that the real test for a reasonable accommodation and whether it should be used is whether it is effective in allowing the disabled employee to perform the essential duties of the job. If it turns out that there are no effective accommodations, then the employee, even though he or she meets the ADA definition of disability, would not be a "qualified disabled employee." Under ADA, the employee must be able to perform the essential duties of the job with or without reasonable accommodation. So, if there are no more effective reasonable accommodations that would allow that to occur, then the employee would not longer fall under ADA. Thus, an employer could terminate such an employee.

The problems/considerations you are going to have to deal with in coming to that action are:

1) Making sure you've documented the continuing inability to perform the essential duties of the job (use whatever performance evaluation mechanisms you have to demonstrate that, such as "PIPs."

2) Establishing that there are no more reasonable accommodations to try after the ones currently in use are no longer successful. In this regard, a couple of "last resort" accommodations include leave of absence with the expectation that it would permit the employee to return to work later and perform the essential duties of the job with or without further reasonable accommodation; placing the employee on a vacant, different job for which she is quailfied that she can do with or without reasonable accommodation, even if the duties are lower level and pay is lower.

3)Getting a medical evaluation establishing that the employee is no longer able to perform the essential duties of the job in a satisfactory manner even with reasonable accommodation.

You need to be talking to the employee about these things. And bring it to the attention of the treating practitioner. At one point, of course, consider disability retirement, if your company offers it. But if you have your "ducks lined up in a row" then, yes, you can terminate.

Go to EEOC's webstie for their guidance on ADA reasonable accommodations:
[url]http://www.eeoc.gov/policy/guidance.html[/url]

Emilyg

Thank you, thank you for this detailed, informative response. I read through a 60 page document yesterday trying to untangle this mess. I appreciate your comments and will relay them to my supervisor.

Thanks Again!

Don D

Emily: I notice that you are a new poster. I can sense your satisfaction as you read Hatchetman's response. Although he does often go to great lengths in his answers, you will find that they are always right on target and that they are great advice to follow; and he always includes click-on links for additional assistance. We should all post a copy of that response inside our "ADA Cheat-Sheet Book", or whatever we call it. x:-)

awilliams

I second that! Hatchetman, Don D, and many others make the Forum such a wonderful place to receive excellent information. Way to go! xclap

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Emilyg

Yes, I am new, and YES, Hatchetman's response was timely, accurate, and quite helpful. I am grateful to know this forum is available as I wear several "hats" in my position and this triangle of FMLA/ADA/Worker's Comp drives me nuts. It's awesome to know there are experts out there who have the right answers.