options - determining if ADA, and what/how to accommodate

hrinsd

One day last week, our receptionist of 3 wks became disoriented, and walked away from the desk, leaving phones ringing, etc. At the time, I was told she wasn't feeling well and took her home to recover. I also found out at that time that she is under treatment for depression. She returned to work on Monday. Yesterday, she was found slumped over, barely conscious at her desk, paramedics were called.... I requested a release from her doctor to return to work, stating that she is able to perform the functions of her job. Her doctor has now changed her medication, and she wants to return to work.

I'm hesitant because she doesn't know yet if or how the new medicine will work, and at this point has demonstrated she is not be able to perform the essential function of her position (answering the phones).

In 15 years in HR I've never had to deal with this type of situation, and don't have ready access to labor law (that's another issue!). In reading up on ADA, I think that due to an inability to come up with a reasonable accommodation, I can let her go. However, if that's not the case my concerns are 1) if her new medication fixes the problem, do I have to allow her to return to demonstrate that she is now able to perform her job duties and 2) if it doesn't and she has another incident, she could cause injury to herself (w/c liability) and I still may have to accommodate her. The CEO wants her gone now, so I need to make sure what we do is legal.

Any input is greatly appreciated.

LindaS

I would require a medical release from her physician before allowing her to return to work. I would also provide her with a copy of her job description and ask her to present it to her physician to determine if she is capable of performing all the necessary functions of the position. If not then you need to receive additional medical information before determining if she qualifies for ADA protection.

gillian2

Linda's advice is appropriate, but before you delve too deeply into the ADA, review the Fair Employment and Housing Act, which covers disability issues in California. You may find that this person is not a covered disabled person under the ADA, but is disabled according to FEHA. The two main differences is that a disabled person according to ADA is someone with a "substantial limitation" - FEHA is merely "limitation". Secondly, under ADA, mitigating circumstances (medication, for example) can create a situation where someone with an illness is not disabled because medication fixes the problem. Mitigating circumstances cannot be considered under FEHA.

Don D

Good advice from both posts. But, even at that, I think I would err on the side of allowing the employee to funtion, or not as the case may be, with the revision to the medication regimen. If she were on a dock on a towmotor, I would not. but answering phones as a primary function seems to be an occupation worthy of a little bit more slack. Depression is indeed an ADA covered disability, even if medication controls the illness and I would not discard the employee at this point given the occupation she is in. Depression affects a great number of workers in all occupations but is typically easily controlled by medicine. Perhaps, or rather OBVIOUSLY, he had her on either the wrong one or too much of it.