FMLA Extending Into ADA

Rockie

We had an employee in an outlying office who went out on FMLA for some rather routine surgery which ended up being more complicated than originally thought. I also feel that she was "milking" the system and could probably have come back and worked at least some of the time she was out. But...nevertheless, when her FMLA was in its last week I called her up to find out how she was doing, etc. In the course of the conversation, I asked her about her plans to return. She told me that she had a doctors' appointment in two weeks and would find out then when she could come back. I told her that since her FMLA was up that we could not guarantee her the same job, but would put her in a position that was available, but would be a lesser position. She told me that this was "unacceptable" to her as she had been doing this job for many years. By a major miracle, she was able to contact her doctor and immediately get his okay to return to her the following Monday, thus saving her job.

Now, I find out that she has to have radiation followup therapy. I know that she has exhausted her FMLA, but will this put her in an ADA situation? We are willing to work with her as she only has to take a couple of hours off a day for five weeks. Since she is a long term employee, we want to be fair with her on this and also given the situation she is in. I guess my major concern is what are our obligations if this turns into a much more serious problems such as chemotherapy, etc. At what point is this an ADA consideration and also what should be do about ADA?

Thanks.

Gar

The only ADA issue that I can see is reasonable accommodation. Assuming she is recovering from some form of cancer, reasonable accommodations would be to give her time off for the radiation therapy and its side effects and/or allow her to perform only the essential functions of her job. Employers aren't obligated to approach employees and ask if they need accommodations. The onus is on her or her health care provider via the FMLA fitness for duty certification, or her out right requset for an accommodation. However, once she runs out the string on her FMLA time off, future absences not covered by FMLA, whether they be for a reasonable accommodation or not, are chargeable. But be very, very careful. Should this become an absence/disciplinary action problem, you don't want to appear to be taking action against her because of the accommodation.

awilliams

[font size="1" color="#FF0000"]LAST EDITED ON 07-11-01 AT 06:30PM (CST) by jrobb (admin)[/font][p]I think you are absolutely right to analyze her request for time off to attend her radiation treatments as a request for a reasonable accommodation under the ADA. The ADA often rears its head when an employee has run out of FMLA time, yet still needs some time off before returning to work full time. Remember that the ADA requires an interactive process to decide what is the best way to reasonably accommodate the individual. I would call her into your office and discuss it with her. It may be possible that she could work a flextime schedule, coming in to work earlier on days that she must leave early for her treatment. If this is not an undue hardship for your company, you should consider allowing her to do that.

If you are a law center member, you can access our HR Executive Special Report entitled, [link:www.hrhero.com/special.shtml#fmla|FMLA, ADA & Workers' Comp: Navigating the Treacherous Triangle], on this website. It offers many helpful tips in dealing with the situation that you describe.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Mike Maslanka

just one point...on the fmla,was it designated as fmla leave prior to her going on leave--that is,when the situation turned into a serious health condition?...if not,and she has thus not arguably exhausted all fmla leave,she may be entitled to intermittent leave...regards from texas,mike maslanka

Rockie

Yes. We knew about her surgery well ahead of time and had all the medical certification in. She didn't expect her complications and thought she would be back in about four - six weeks. I just got suspicious when she told me about all the "house cleaning" and closet cleaning she was able to do while she was out of work, but her job at work (desk work - answering the phone) was just too strenuous, even part time. It wasn't until she had exhausted her leave that she was able to get a doctors certificate to come back to work immediately.

System

WHOA--In my opinion...if she has admitted that she was able to clean her house and closets then she should be able to sit and answer phones with no problems whatsoever! Did she say this to you in person or was this heresay? If she said it to you in person I would document that conversation and share it with the unemployment administrative law judge IF should this turn into a termination.

Heck, document it anyway. You never know when you'll need that kind of stinger. Good luck with this one; she sounds like a real handful.