How far to accommodate? FML/ADA

Seeking thoughts on two employee accommodation situations that are pending. Both involve thorny psychiatric/emotional issues (bipolar discorder):

Employee 1: Has had bouts before where he took leave of several weeks to get stabilized. This time he would like to work a shortened week (6 hours/day), which we are willing to do in the short term, but can't really handle on a permanent basis. Would we potentially have to do a shortened work week as FML, in which case (at the rate of 10 hours per week) it may never get used up? Simultaneously, this employee is making an accommodation request for blocks of "uninterrupted" work time, which we can do. We have also agreed to move his office to a less trafficked area (in lieu of installing a door, since we are in cubicle land and there is literally no room for this). But now the employee who would switch with this person is making noise about the timing interfering with a major project, and saying he won't move until August. Can we tell him tough, that he has to move now? We don't want co-workers (who have been understanding but at times frustrated by the employee's behavior) to resent him, but would like to implement as much of the accommodation as we can soon.

Employee 2: Has exhausted FML for this 12 months with bout of pneumonia and leave for bipolar. Currently has restrictions on what types of work he can do for a limited time, coming back from the pneumonia, which falls under our 60-day transitional duty policy. Is now also asking for an accommodation for the bipolar of no "shift work" and no working 7 days in a row. Because of the nature of the work at this facility, all employees at times work 7 days in a row and then take off time, or work a day shift and on occasion follow with a night shift. I am going to really push the supervisor on whether the job can be restructured so this employee could work one shift at the same time (maybe the least desirable one, starting 4 a.m.) and still do his job. How do we get around the issue of every other employee working the variable schedules and being aware of (and probably very envious of) the fact that he doesn't? Sure, we can say "We're complying with the law." Any ideas for how to keep this from being a huge morale issue? The supervisor suspects that even if we did everything this employee asks for (allow him to be 10 minutes late on a regular basis!, allow him time as needed to talk with doctor by phone), he would not be able to do his job most of the time. He has a history of taking off for numerous reasons, from sinus infection to being upset over euthanization of a dog.


  • 25 Comments sorted by Votes Date Added
  • Admittedly I hurriedly bounced through your post due to the amount of detail. My first reaction is that you seem determined to accommodate, regardless of the imposition visited upon the employer and its employees. That imposition, to me, equals 'unreasonable' accommodation. Rather than find reasons to bend yourself sideways and inconvenience the rest of your staff to accommodate two employees with mental illnesses, I suggest you find reasons to determine all this mess unreasonable. But, I am equally as certain that I will soon be contradicted. x:-)
  • I would lean toward accomodating #1 and try to smooth it over with the other ee. I wouldn't tell them "tough". You could get #1 to help them move and even have the supervisor chip in. That may help.

    I do not think you should accomodate #2. I am very leery of altering shifts, especially if you are running lean. If you do decide to accomodate I would only do it for a finite period of time. Allow them one month to help stabalize their condition.

    I think you have bent over backward to help these guys and that will be important should this get ugly. Good luck.

  • If I'm not mistaken, the ADA addresses disabilities and defines them as permanent conditions that alter one or more life activities, not those subject to alteration or those that are expected to change with drug management. A condition successfully managed by drug therapy is not a disability. And a condition that temporarily gets out of whack due to the non-responsiveness of drugs is not a disability, unless it is unmanageable and alters a life activity. Still then, the individual has to meet and perform the job's requirements.

    Also, everything I've heard and read about ADA tells me that employers don't accommodate for 'a little while' or temporarily and that once the employer embarks on an accommodation, the supposition is that he could surely continue it since he began it in the first place. Juries like to think that if something is a 'reasonable accommodation' to begin with, surely it would be one at a later date.

    As I said, "If I'm not mistaken".
  • My impression is that this would not even be covered under ADA, because of exactly what you said. It can be controlled by medication.

    As to the one month accomodation, I think that would play out better in front of a jury, because at least you tried something instead of a flat out no. I don't think it would be that difficult to explain why you can't do it forever. For the month, you worked people double shifts and Joe, Jane, Linda and Ted had to each work an extra night, etc, etc. You can't work everyone else like that forever.

    My advice was to NOT do it. However, based on what was done already, it looked like altering the shift was going to be a real possibility.
  • Since I don't know much about the ADA and have not taken the time to research it; do I understand correctly that a seizure condition that is not diagnosed as epilepsy, and can be essentially/usually controlled by medication would not be covered under ADA?
  • Unfortunately, that is probably a "depends" question. There have been cases which have been ruled as not covered when the illness can be alleviated through medication. An example is high blood pressure - I remember that one. I believe that bi-polar disorder has been found to be a covered disability, but have not researched to make sure that is correct.
  • I agree with LivindonSouth. These accommodations border on unreasonable, and quite frankly sound more like requests for special favors in scheduling and work assignments.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-06-05 AT 10:41AM (CST)[/font][br][br]Welcome to the Forum, Public Sector.

    Like the others, I would not rush to accomodate. If I worked through your post correctly, you indicated the EEs had made the accomodation request. You did not indicate any medical provider had seen the depth and breadth of the job descriptions, physical duties, cubicle locations and the like, to determine if any accomodation was needed or even if one could be made.

    To utilize Livindon's disclaimer, "If I am not mistaken" the interactive process could (and I think "should,") involve input from the specialists who are treating these EEs. Just because the EE would like an accomodation does not mean it is necessary or even effective with respect to the claimed disability.

    edited for spelling.
  • I do agree the requests look like hunting for special favors, but I wouldn't say they're unreasonable, depending on the company, industry, and practice. In that light, I wouldn't even look at what the employer has done to keep the employees working as "accommodations" - they look like modified job assignments in an Incentive to Return to Work vein.

    Unless bipolar disorder is now covered by ADA (and more and more conditions are being added to the list each week), "accommodation" shouldn't even have to factor in. If bipolar *isn't* a covered disability, I would apply a modified job duty or return to work policy, and if the employees can't cut it in a set amount of time, terminate. But make sure how your state is looking at bipolar disorder first.
  • "If I am not mistaken", bi-polar has been ruled to be a disability under the ADA, but maybe I am confusing Ca. regs which are more stringent than the ADA. Perhaps what should be done is to run that point by an attorney and if it could be a disability, go through the communication that needs to take place between the employee, employer and doctor to determine what accomodations could be made and then determine what is reasonable or unreasonable. This is a process and reasonable accomodation is the last step.
  • Thanks for the comments from all.

    We are, of course, seeking medical documentation to back up these requests. We are trying to at least consider the accommodation requests; both of these employees are productive and talented when able to perform. The thing about ADA is you don't look at the name of the disability (except HIV) so much as the impairments it causes. For medications, it is well documented that bipolar meds can result in difficulty getting going in the morning, or less effectiveness if work hours are not regular - this is why I want to grill the supervisor on what is vital about switching shifts vs. staying on one for Ee. No. 2.

    It is basically a very fact specific situation. And with non-physical impairments, it just isn't as simple as getting a piece of equipment or technology. If anyone has struggled with accommodation requests specific to emotional/mental impairments, and the eventual outcome of any accommodations made, your thoughts would also be appreciated.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-06-05 AT 12:16PM (CST)[/font][br][br]I remember working with two brothers who were bi-polar. Excellent workers but when medication wasn't taken properly would behave inappropriately. Working with this was a project involving the employer, employee and EAP. The employees trusted the EAP psychologist and they would get back on track when he became involved.
  • We have had a couple of non-physical impairments to deal with. One was a depression diagnosis - one of our case managers whose job it was to determine client eligibility for childcare subsidy, could not do her job at all. First came FML, which she used up over a 5 month period - she attempted return to work twice but was unable, following FML and another failed attempt to return, we approved 90 days of unpaid leave. Again, two failed attempts to return to work. Finally she wanted to come back at the end of the 90 days, with low-stress work restrictions from her provider. At that point, we only had a Program Asst job, about 1/2 the rate of pay as her CM job and she refused it and resigned.

    Former manager also diagnosed with ADD, no meds. This EE took 30 days off in a rehab program for alcohol dependancy, but requested no other accomodation. The 30 days was covered under FML. EE eventually resigned, but for completely unrelated reasons.

    Not much help here, but the first case mentioned had lots of counseling and lots of paperwork from medical provider - which also tied into STD. We documented everything as this EE and spouse had a litigous history with other employers getting permanent long term disability for depression. So we handled everything by the book and carefully documented each step.

    Standard practice.
  • I, too, agree that you have bent over backwards to accommodate, but possibly too far.
    Re Employee #1: The 6hr day sounds like it might be considered a reasonable accommodation on the basis you stated, even if inconvenient, unless you can prove a hardship which will probably be tough. The sticky situation comes with the move. You may need to negotiate with the other employee to accomplish that.
    Re Employee #2: The ADA only requires interaction on reasonable accommodation if the employee is qualified to perform the job, and the ADA does not require reworking or creating a job to suit the employee if they are unable to perform the essential functions of the job. First you need to determine what the essential functions are in relation to your shift work; and then if reasonable accommodations can be made that will allow the employee to perform them. The types of accommodations you indicate put his qualifications to perform the job in doubt in my mind, and "reasonable accommodations" that go far enough to affect the morale of the department do not sound "reasonable" to me. I would carefully review this situation.
  • Just remember that once you make a decision that sets a precedent for future like issues.
  • It's a popular misconception that 'precedents', once 'established' take their place right up there beside the ten commandments, become etched in stone and must forever more be observed. That is not correct. An employer has the total liberty to reverse any policy, course of action, precedent, procedure or standard practice it wishes to change, unless prohibited from doing so by a contract or a regulation.

    We often hear, "Oh God, now I've set a precedent", or "Be careful, once you set the precedent, you must do that for everybody else." Not true. While discussions of precedents might have their place in the legal arena, any time an employer can offer any scintilla of reasoning for not having followed one, he has no problem. It's often as simple as saying, "You know, we did make that decision in the case of John and followed it with Mary's situation; but, when a similar event occured with Toodles, we reevaluated and decided it would be in the best interest of our company and its shareholders to take another course of action, and here's why.."

    Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
  • I agree with you. (Surprise!) However, defense attorneys rarely do and judges and juries need considerable persuasion.
  • "However, defense attorneys rarely do and judges and juries need considerable persuasion."

    Not to irritate you (and I'll invite you to read my disclaimer) but, that's a pretty broad-brushed, although safe assumption you make, with absolutely no method of proving or disproving it. But, alas, every court case in history has turned one way or another on pursuasion. I'm simply inviting HR practitioners to not develop the feeling that their feet are planted in concrete when they certainly are not.

    Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-11-05 AT 01:54PM (CST)[/font][br][br]I think "broad-brushed, although safe assumption" covers my point and I agree with the rest of what you said (including correcting my spelling of "persuasion" without mentioning it!). I agree one should continue to develop and revise policies and practices, however, I have a tendency to feel compelled to include those cautionary statements. In my vicinity we deal with some defense attorneys who pound precendent into the ground way past the bounds of required record retention.
  • The doctor's information on Employee No. 2 just came back, saying he can do his job with no night shifts, no 7 day workweeks, and then the following notation:

    "(Employee's)disorder can be severe risking damage to himself and work environment, if not managed appropriately."

    Sounds rather ominous. A way of saying "give him everything he is asking for, or else?"
  • And are you to read this Dr.'s mind or complete 3 years of medical school, followed by Residency and some practice to know what appropriate management of this condition means?

    Using that general statement is not beneficial to the company, it only serves to cover the Dr.'s rear end and to give the EE some sort of open-ended cart blanche to do ????

    I think it prudent to bounce the note back to the Dr., along with Job DEscription and schedule and say, please be more specific. AFter all, who want to risk severe damage to the EE or the work environment.?

    And how do you damage the work environment anyway? Is this EE in danger of going Postal or is he/she just going to bring a sledge hammer to work and destroy a few walls and CRTs?

    The more I think about it, the more incensed I am getting about that statement. It is ridiculously vague and open-ended.
  • I can't think of a way it's physically possible for the ee to damage or cause risk to the environment unless the condition causes the ee to emit some sort of chemical or toxic substance. Since I'm sure that's not the case, I would deny the request and I would certainly include this statement in my denial. "Several attempts have been made to get sufficient information from Dr. X, including providing him with a copy of your job description. Information sufficient to approve your (whatever it is your approving or denying) has not been forthcoming from your physician. His last statement to us was so vague in content as to make this denial necessary. Your employment at XYZ, therefore is terminated effective X. We will gladly revisit this decision should you provide us with sufficient information from Dr. X no later than (two days). Otherwise, following your full medical release to return to work, we invite you to apply for any future opportunities for which you qualify at XYZ."

    Not only does that place part of the onus on the employee and part on the doctor, and none on you, it also will serve as a document from which you can testify in a future challenge. Here is what I said. Here is what that means. Here is what our decision was based on. Here is what she was told. Here is what we did. Here is what we were willing to do. No speculation, no conjecture, no what-ifs, no trying to remember what occured.

    Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
  • Well, here's where we are: Met with supervisors and discussed every which way they might or could switch the shifts to accommodate this guy, and they convinced me it can't be done - the facility operates this way out of business necessity.
    The doctor already has seen essential functions and has said the ee can do them all - except one of the essential functions is changing schedules, working some weekends, hours other than 8-5 - doctor says he can do this and then says he is requesting to work only weekdays and only day shifts.
    We are definitely going to use the "risking damage to him and his work environment" as a way of backing up our decision - ie., we can't give you everything you want and we certainly don't want to endanger you or us, so bye.
    Other than "business necessity" and "undue hardship," any terms to hit on to emphasize the message that we can't do this? Unfortunately, we have no similar openings anywhere in our agency that just involve regular 8-5, M-F hours.
  • I think I would avoid the use of terms like 'business necessity' and 'undue hardship'. It seems to me that all that does is encourage an attorney, or somebody representing him, to attack those terms and dissect them and harangue you into defining and defending them. I can't think of a positive reason to use them. I would just tell him that the request has been reviewed and a decision has been made that the company cannot accommodate his request. Once you give him a definitive 'legal type' reason like one of those you mention, you are forever locked into having to define and defend. Leaves you absolutely no wiggle room or room to couch your remarks as you would like to, in a hearing. I'm not implying you would want to later change your reason, but I just would not want to paint myself into a particular corner.

    Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.
  • I agree for the same reason I stated that I prefer not to deal even with ADA qualifying disabilities using the term "reasonable accommodation". Either "reasonable accommodation" or "business necessity" will give attorneys billable hours, but if you really want to see action and a complete review of every aspect of your company's work processes and financial balance sheets, go with "undue hardship". You will come up with a new definition in-house.
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