ADA

MaryWinters

I represent a small rural library, which has an employee (a circulation clerk) with severe tendonitis. The library has granted her leave without pay for over six months as a reasonable accomodation. L & I has not yet made a determination of whether or not it is a permament disability, and she has been unable to even work on any physical accomodations due to pain. Her doctor, an osteopath, has not allowed her to return to work and she cannot provide a time when she may be able to do so. The library, due to its size, has no light duty postions. Her duties are being performed by a temporary worker, which is not ideal. Are there cases/opinions discussing what is a "reasonable" amount of time to hold the job open for a worker who is unable to perform her essential job functions, before they can terminate her employment? 6-9 months seems like an awfully long time. Also, is there any reason that the library cannot ask her to submit to a medical exam to determine her ability to perform her job, at its own expense?

Theresa Gegen TX

Yes. Most cases that address this situation under the ADA say that once the employee has exhausted all FMLA and company leave, the employer may be required to give additional leave as a reasonable accomodation. If the employee cannot come up with any progonosis (end date of leave), most cases say that the employer need not continue to give leave indefinitely. If the employee comes up with a definite end date for leave (for example 2 or 3 weeks), then the employer must determine whether it can cover for the employee for that time (the answer will usually be yes).

Good Luck!

njjel

If the employee's doctor gives a response that he will not know when the employee can return to work for at least 3 months (and maybe not even then)(employee has already been out six months), are we safe to terminate the employee without violating ADA? Employee has used all leave.

vmiller MO

Do not assume that this person is a "disabled person" within the meaning of the ADA. As far as you know, the individual has a medical condition, serious but still a medical condition.

Assuming for the sake of argument that the individual meets the definition of disabled, as Theresa stated, the courts have generally held that you do not have to hold a job indefinetly for a person who is out on medical leave. Thus, it would not be a "reasonable accommodation" to grant a person a leave of absence with no return date or a return date of "indefinite." If the Library decides that it needs to fill the job, I suggest that you consider simply telling the individual that due to the indefiniteness of the leave the Library has to fill the position and that there may not be a job available when the individual is able to return to work. I have made the assumption that the Library would take the person back if the person could perform the essential functions of the job.

Before I would take the above action, I would check to see what Washington's state law requires regarding disabilities.