FML expires then ADA?

mushroomHR

We have two situations that I am not sure how to handle. The first is a person who has been out on a work-related back injury. She has used up all of her FML. If she needs further time away from work for doctor appointments or her back is hurting, would she fall under ADA and should I get the process going the next time she needs time off from work?

The second situation is a person who has exhausted all of their FML due to a stomach disorder. She is currently on short-term disability but is scheduled to return to work on 10/31. She is currently undergoing testing as no diagnosis has been made yet. This person misses entire days due to her condition, and sometimes several days at a time. Would she fall under ADA?

I have not had anyone exhaust all of their FML time prior to this. We have a points-based attendance policy and if these people keep missing work they would have enough points accumulated to be terminated and I know the courts wouldn't look highly on this. When someone claims ADA does it cover missing days at a time from work? Would this be a reasonable accommodation? Can we require a doctor's note when they miss time?

I'm sure this is all basic but I don't know where to start. Thanks for any help provided.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 10-14-03 AT 09:19AM (CST)[/font][p]In both cases, it may be necessary at one point or other after their FMLA expires to evaluate ADA disability.

Additional leave may be a reasonable accommodation but not the only one that could be applied. All of that would come out in the interactive process that you go through to determine if the employee is ADA disabled and if so what reasonable accommodations, if any, are appropriate, and needed, that would let the employee to perform the essential duties of the job.

Take a look at EEOC's Guidance on Reasonable Accommodation and Undue Hrdship for ADA.

[url]http://www.eeoc.gov/docs/accommodation.html[/url]

vmiller MO

The mere fact that a person has taken FMLA leave does not mean that the person is "disabled" within the meaning of the ADA. In the two scenarios you presented, the FMLA applies to a "serious health condition" of the employee. The FMLA's serious health condition is much more encompassing than the ADA's definition of a disability.

As a result, you should conduct an ADA analysis as to whether the individuals are disabled under the ADA. In essence, you need to determine if the individuals suffer from a physical or mental impairment that substantially limits a major life activity. Only after you answer this question in the affirmative do you need to even consider a reasonable accommodation.

If you skip the ADA disability analysis, then you will be under the ADA's "perceived to be disabled" provisions. This means that if you assume that they are ADA disabled, then the individuals are disabled even if medically they do not meet the ADA's definition of a disabled individual.

From the fact you gave, it is hard to determine if these idividuals would be considered disabled under the ADA. If there conditions are temporary, then they are not disabled. Even if their conditions are chronic, they still may not be disabled because the condition may not impair a major life activity.

I suggest that you consult with your attorneys.

Good luck.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

mushroomHR

Thanks for your responses. As I read the regs it states that one of the major life activities is "working". If someone has a condition that prevents them from "working" would they be considered disabled? As I see it almost any condition that makes someone have to stay home and prevents them from coming to work would qualify as a disability under the ADA. The person I refer to with the stomach problems can't come to work periodically because her stomach hurts. Since she can't come to work she would be considered disabled under the ADA.

I feel sometimes that I'm just running around in circles with all the FML and ADA allowances. It gets overwhelming trying to make sure I'm doing what's legal and what's right.

Hatchetman

"Working" as a major life activity means more than just working one job. As established by EEOC, "working" as a major life activity, means a category of jobs or a broad range of jobs that cuts across several categories of jobs.

YOu would only need to consider working as a major life activity if there is no other major life activity that is significantly impaired by the medical conditiion.

EEOC has provided guidance on this issue in its ADA Title I Technical Assistance Manual.

The link is [url]http://janweb.icdi.wvu.edu/links/ADAtam1.html[/url]

Scroll down to Chapter 2.

Don D

My speculation is basically worthless, but I suggest it is doubtful that either will qualify for ADA consideration. I suspect the back problem is temporary in nature or either will not rise to that level. In your second scenario, no matter what analysis you do, I doubt a person for which no diagnosis exists could be determined disabled. It is not a natural conclusion to assume that one automatically advances from FML to ADA, in fact it is rare in the scheme of things. Don't simply read what the EEOC has to say and assume you must accommodate. I too think that you should run this by your attorney for a clear understanding as to how you must move forward, not only with these two people, but, as a company, in getting your understanding straight. Otherwise, you might find yourself accommodating things you need not.