ADA confusion!

bgrimes

I just can't seem to grasp the ADA thing. I have an under 40, male employee, employed for 4 years. He has a sit down computer based job. He had foot surgery in Sept. He has ran out his FMLA leave of course. He came back working 4hr days since Dec. 10, 2001. He takes therapy 3 times per week. His particular Dept. is very busy. We have people in his Dept working O/T and Sats. He sits down 98% of time to perform his duties. I asked him if he could give us more hrs. during the week...to come in earlier, work later and work Sat. He was a bit defensive. This morning he brought in a doctor's slip stating he can only work 4 hrs a day (again), for the next 4 weeks. This is killing us productively. It isn't an option to hire a temp due to the uniqueness of his duties. How long is a 'reasonable accomodation' considered to be? What is fair? I see our options as being: a) put up with it another 4 or more weeks in fear of ADA violation b) Terminate and solicit another permanent graphic prepress operator. Any advice?

Theresa Gegen TX

I doubt that this employee is disabled. A disability is more than just a medical condition and it is more than just a temporary situtation. A disability is a medical condition that significantly restricts a major life activity. Normally, a condition like a broken leg, that will go away, is not a disability.

I would not take any action against this employee without having the situation reviewed in detail by legal counsel. Another thing I would consider doing is sending the employee back to his doctor with a list of the essential functions of his job and getting the doctor to identify what the employees limitations are in those particular functions (You'd be surprized at how many doctors will give conclusory restrictions [only work 4 hours], with no actual limitations to back it up. But before you can make a decision about whether to continue with the employee, you need the facts to back your decision up.

Good Luck!

Hatchetman

Let's assume for the sake of argument that the employee is ADA disabled and that he can perform the essential duties of the job without reasonable accommodation EXCEPT that the disability causes the employee to be frequently absent, more so than what would be "tolerated" for a non-disabled employee.
The employee seeks a reasonable accommodation in your "absence/attendance" policy so that the disability-caused absences aren't "counted against" him.

A qualified disabled employee must still meet the essential duties and demands of the job. Courts have pretty well held consistently that an employee who is disabled must still meet the employer's attendance requirements if they are announced and held against other employees, non-disabled and disabled alike. In other words, having a disability doesn't necessarily get the employee off the "acceptable attendance" hook. When an employee can't/doesn't meet the the essentials demands of the job, after accommodations have been provided, then, in theory, the employee is no longer considered ADA-qualified.

The $64 question is exactly when that occurs. At what point do you say, as an employer, in regard to an employee's repeated absences due to a disability "enough is enough"? While the concept of "undue harddship" can come into play, that standard may be a little difficult to meet when you have an employee who is "nickel and diming" you to death on absences. Outside of the undue hardship standard, in order to show that the employee isn't meeting your attendance expectations after being given reasonable accommodation that should be effective, it seems to me, you may need to show that you have enforced attendance standards for employees; that you put this employee on notice that he wasn't meeting attendance expectations; that you gave reasonable time for him to meet those expectations, as you do with everybody else, and maybe slightly more just to show that you were really reasonable; that the emplyee didn't meet those standards; and that there was continuing negative impact occuring to the business as a result of the repeated absences, citing examples of what happens when he is absent.

But I like Ms. Gegen's suggestion. Consult your attorney before acting, especially if your planning to terminate. And then if he or she says, "Go -- Do", if and when EEOC comes aknocking, you can tell him or her to, "Go -- Defend!"