Consistent Tardiness and ADA

HR in Oregon

We have an employee who is consistently late for her shift. It's important that the EE arrives on time because patients are waiting on her for treatment. She has been spoken to regarding the tardiness and recently presented a doctor's note stating that she has a chronic illness that causes her to be slower in the morning. At this point, a reasonable accomodation would be to push back her start time but this will affect both other departments and patient satisfaction. What steps would you recommend? I feel that if her shift time is set back by a half hour, she will continue being late for this new shift. At what point is reasonable accomodation not reasonable?

Hatchetman

Under ADA, the employee must have a SIGNIFICANT impairment of a major life activity in comparison to the average individual. Under federal ADA regulations a major life activity includes but is not limited to caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, thinking, concentrating, sitting, standing, lifting, reaching and sexual reproduction.

You haven't described what the medical condition is for this employee and to what degree a major life activity is impaired. If it is just that she is slower in the morning in getting up, I suspect that won't qualify either as a major life activity or a significant impairment.

You should get clarification from her treating practitioner as to exactly what her medical condition is and what is impaired and to what extent before wokring on the reasonable accommodation -- in short she may not be disabled under ADA and therefore not entitled to reasonable accommodation in her job duties or job expectations.

But let's say she is ADA-qualified for reasonable accommodation. She still has to meet reasonable expectations and not be unduly disruptive. It is not clear why she still can't arrive to work on time. While modifying work hours could a reasonable accommodation, if it causes undue hardship by being unduly disruptive to the oepration or to clients, the employer doesn't have to implement it.

Take a look at EEOC Guidance: Reasonable Accommodaiton and Undue Hardship Under ADA. The link is [url]http://www.eeoc.gov/docs/accommodation.html#undue[/url].

I stongly suggest you clarify everything with the employee and the treating practitioner and document.

I don't know what Oregonian law is but i suspect there is an ADA type law in Oregon. If so, you may have to make the assessment under that law's provisions if they are more beneficial to the emplyee than federal ADA is (like it is in California).

sonny

Here is a concept. .perhaps she could get up earlier.

jimlegal

Maybe an accomodation to a 2nd or 3rd shift is in order!

Don D

Sonny's thoughts are mine exactly. Regardless of why a person is chronically late, I suspect the answer is either getting up earlier or getting it in gear earlier. I have always said if a person can get here at exactly 6 minutes after 8 every day, there is no reason they can't consistently get here at exactly 6 minutes before 8 every day. Habits do form, don't they?

Rockie

I agree. It appears from the wording of "chronic condition" that she is confusing FMLA and ADA. As with the others, I suspect it's just getting up late in the mornings and she should get up earlier if she is "slower" in the mornings. It doesn't appear that this is something that would affect a major life function and thus, would not qualify for ADA.

I have found with doctors' excuses - they need to be specific; otherwise, the physician will simply write that "patient so and so needs to come in 1/2 later than usual". If I get an excuse like this, I send back to employee asking for more clarification as to what the condition is as you are unable to make a determination if it is a covered condition.