WC and ADA

gab

I have an employee who is out due to an on the job injury. He has already exhausted his FMLA. However, he is still going to the doctor to determine his limitations. Therefore, I don't know if he will be considered under ADA or not. How long do I have to wait to determine if the employee falls under ADA?

Theresa Gegen TX

I am not sure that there is any time frame per se. But you need the medical facts. If the employee is already scheduled for his final medical appointments to see what his limitations might be, it seems like you could easily wait. (they should occur in the next few weeks)

Under the ADA:
Generally, if the employee can return in a set time, (for example two months), then if you can give the leave without an undue burden, you have to give it.

However, if the doctor says "undetermined" about when the employee can return, most courts say extending the leave with no end date in sight is an undue burden, and does not have to be done.

Also, some state's worker's comp leave requires additional job protection above and beyond the FMLA.

Good Luck!

phbair

Whoa, hold on, don't get ahead of yourself. Has the employee CLAIMED to be a person with a disability? Is the employer already on notice that the employee is a person with a disability? Has s/he ASKED for an accommodation?

If the answer to each of these three questions is "no," you'd better be careful about ADA considerations, lest you find yourself with a "regarded as" disabled claim. An employer should ALWAYS bear in mind that in 99% of situations involving an employee with a physical or mental impairment, the burden is on the employee to bring that fact to the attention of the employer, and request accommodation. Surmising that an employee has a disability from the mere fact that s/he is on FMLA leave, without the employee claiming a disability, then going through the analysis to determine if the employee actually has a qualifying disability, is just asking for trouble.

Theresa Gegen TX

That's why the first thing the employer has to do is to get the medical facts. The employee doesn't have to use any magic words (like disability and reasonable accomodation) to put the employer on notice. But before the employer can even determine if and whether the ADA might apply, it needs to get a medical update from the employee's dr.

I know, I had a case where the employee claimed that the employer "regarded" him as disabled because it accomodated his medical conditions. But, guess what, the employer was doing the employee a favor by giving an accomodation, and lots of employers give employees who are not strickly disabled accomodations. Based on the state of the law as I know it, if the employee is not in a wheelchair or blind, the employer is not going to know whether they are disabled until a jury or judge says so. Then it is far too late.

Don D

Our attorney has advised as follows: Write the employee immediately at exhaustion of FMLA, not only advising that FMLA exhausted on (specific date) but that he is expected to return to work, and if unable to, must provide the company with medical updates no less than each 30 days to include; diagnosis, anticipated course of treatment, known limitations, expected date of return. And also I always send with that letter a copy of the "job essentials" which is a 4 page document prepared by physical therapists covering every physical angle of the job (these are plant jobs)with a specific instruction to the 'employee' to present that document to his or her treating physician. This supposedly covers the basis of (1) notifying him he is no longer on FMLA, (2)putting the ball in his court as to when he can return to work, (3) putting him on notice that if he cannot return now that FMLA has expired he has a duty and requirement to provide medical documentation in your required format each 30 days, and (4) his doctor will have in hand the physical expectations of your job position (therefore, its somewhat less likely that the doctor will rubber stamp a work return not knowing what the job is. Never leave it open ended as to when you expect medical documentation and never leave the employee assuming it on his timetable as to when he can return or provide the Co. with medical documentation. If he does not comply, he can be terminated, I would suggest in 45 days. This gives him plenty of time to have an appointment or to advise you of reasons why not. Don in MS.