ADA clarification

mushroomHR

I just finished reading the HRbriefing about ADA. There is something in there that I need clarification on. Page 4, in the "Tip" section it states: "Keep in mind that you can't ask for documentation in response to a reasonable accommodation request if:...(2) the individual has already provided you with sufficient information to substantiate that she has an ADA disability and needs a reasonable accommodation."

I currently have an employee on intermittent FML for a condition that I am aware of that qualifies her as disabled. Her FML has been exhausted for this 12-month period. Do I understand correctly that this employee does not need any further certification from her physician for an ADA accommodation? Currently this employee must miss work periodically due to her condition. Am I now not allowed to ask for further documentation and must allow this employee to miss work as an ADA accommodation? I'm confused. Thanks.

LivindonSouth

"Do I understand correctly that this employee does not need any further certification from her physician for an ADA accommodation? Currently this employee must miss work periodically due to her condition. Am I now not allowed to ask for further documentation and must allow this employee to miss work as an ADA accommodation?"

You do not necessarily have to have 'certification' from her physician that she needs an accommodation. Certification is suggested in order to grant FML but is not required for you to grant ADA protections/accommodation. If you already know of the disability, your next step is the interractive process. Determine what accommodations are requested, suggested or appropriate and then decide if one is reasonable. This may or may not involve the physicianls participation. Allowing her to miss work is not necessarily an automatically reasonable accommodation. It may or may not be. It is not 'required' that you allow her to miss work. Determine if it's reasonable under your business circumstance. ADA requires you to make reasonable accomodations for an employee who is "a qualified individual with a disability". FML requirements are entirely different.

SMace

Welcome to the forum "livin". I see it is your first post. We have quite a lively atmosphere, so hold on to your chitlins.

Great answer. We look forward to hearing from you every now and again.

BTW, you remind me of someone but I can't quite place it.

mushroomHR

Did you see the moniker is LivinDONSouth. Could it be?

KathyHR

[font size="1" color="#FF0000"]LAST EDITED ON 05-24-05 AT 04:19PM (CST)[/font][br][br]I thought the very same thing and I haven't been on the forum very long. I've been waitin' to see how he'd re-surface.
BTW what's a bottle tree?

LivindonSouth

Kathy: check your private inbox for an explanation.

mushroomHR

This employee must miss work at times because of breathing problems. If we deny her to miss a day of work as a reasonable accommodation becasue she can't breathe, wouldn't we be in violation of the ADA as breathing is a major life activity?

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 05-23-05 AT 01:33PM (CST)[/font][br][br]If she is out of FMLA and you haven't stretched the policy for others, you can deny her the leave. Even if she is disabled, she still has to follow your attendance policy. It is not a reasonable accomodation to alter your attendance policy for her. If you have altered it for others, it gets a little more complicated and I would suggest calling a competent attorney.

HRLASS

Actually, adjusting your attendance policy for someone who qualifies as disabled under the ADA IS considered a reasonable accommodation. Additional leave beyond the FMLA period can be considered a reasonable accommodation if the periods are defined and reasonable and depending on whether your employee can still perform the essential functions of the job. In other words, if being off while this condition is getting under control is not acceptable, you may need to look at temporary or full time reassignment to a position she can perform, or that is adaptable to work at home periodically if she can't get in to the office. Any position you would reassign her to must also be a position for which she is qualified, and for which she can perform the essential functions, with or without reasonable accommodation. The employer is not required to create or modify a position, nor is a promotion considered a reassignment. (It appears to be ADA month around here.)

HRLASS

Supplement...
Reassignment is considered a reasonable accommodation under the ADA after all other efforts to reasonably accommodate have failed. Any job you reassign her to must be a legitimately vacant position, and if she is qualified, she would not be required to apply for the position. It would be a non-competitive internal reassignment.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 05-24-05 AT 01:58PM (CST)[/font][br][br]Altering the attendance policy is certainly an accomodation, but in my opinion it is NOT a reasonable one.

Please tell me what court ruled that altering your attendance policy would be reasonable under ADA. If that has happened I'm going to have to rethink some things.

HRLASS

I checked the EEOC "Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the [ADA]" as revised in 2002, and modifying a workplace policy is listed as a reasonable accommodation. "In some instances, an employer's refusal to modify a workplace policy, such as a leave or attendance policy, could constitute disparate treatment as well as a failure to provide a reasonable accommodation." In all states I found, erratic, unpredictable attendance is not acceptable with or without a disability, but what I was referring to is an extension of FMLA leave that is unpaid; extended as an ADA reasonable accommodation if the individual's physician believes that within a reasonable, finite period of time (usually 60-90 days), the illness can be brought under control. In such a case, the EEOC Guidance says that the additional leave should be granted, within reason, and job protection also continues. Those are the guidelines we follow to protect ourselves from lawsuits and we've been dealing with this particularly in the last few weeks.

mushroomHR

Thank you for your responses. The job this person performs is a machine operator so she could not work from home. During her episodes she can't come to work no matter what job we would assign her to. Also, her condition is a lifelong condition. I'm just afraid that if we would not allow her to take off a day here and a day there while she gets her condition under control, a court would not look at it favorably if we were to terminate her for accruing attendance points due to missing work as a result of her condition.

HRLASS

You are patient. Back to your original post, I think you can ask for additional certification. If her FMLA leave has expired, you can ask for a return to work certification which should state any restrictions, hopefully including occasional unpredictable absences as needed for her condition. You can work with the interactive process to see if you have another (vacant) position she could perform where the interference of that schedule wouldn't be as great. Otherwise, you may have to work with her and document the absences until it becomes a performance issue and you have to terminate her. She is not qualified as disabled under the ADA unless she can perform the essential functions of the job, and if one is to show up according to your attendance policies, then that's it. You also may have to deal with it if her unscheduled problems could present hazardous work conditions to herself or others as a machinist.

LivindonSouth

Be careful about the level of credence and 'knee-jerk' you assign to the guidance of the EEOC suggestion papers.

HRLASS

Gotcha