ADA and Reasonable Accomodations
Emilyg
3 Posts
I have an employee who has undergone several brain surgeries. Since the last one, she has steadily declined in her position. We have made the following reasonable accomodations: 1)Revised Job Description approved by her neurosurgeon 2) Reduced hours and FTE 3) Assigned several help-mates to her
However, it seems that she is now unable to perform the most basic functions of her job: answering multiple telephone calls, accurately scheduling appointments, etc.
It is our feeling that our reasonable accomodation for this employee has gone as far as it can go and now poses an "undue hardship" as other employees try to cover up for her.
Can we terminate?
Thanks.
However, it seems that she is now unable to perform the most basic functions of her job: answering multiple telephone calls, accurately scheduling appointments, etc.
It is our feeling that our reasonable accomodation for this employee has gone as far as it can go and now poses an "undue hardship" as other employees try to cover up for her.
Can we terminate?
Thanks.
Comments
The real issue is that the reasonable accommodations appear no longer effective. ADA provides that the real test for a reasonable accommodation and whether it should be used is whether it is effective in allowing the disabled employee to perform the essential duties of the job. If it turns out that there are no effective accommodations, then the employee, even though he or she meets the ADA definition of disability, would not be a "qualified disabled employee." Under ADA, the employee must be able to perform the essential duties of the job with or without reasonable accommodation. So, if there are no more effective reasonable accommodations that would allow that to occur, then the employee would not longer fall under ADA. Thus, an employer could terminate such an employee.
The problems/considerations you are going to have to deal with in coming to that action are:
1) Making sure you've documented the continuing inability to perform the essential duties of the job (use whatever performance evaluation mechanisms you have to demonstrate that, such as "PIPs."
2) Establishing that there are no more reasonable accommodations to try after the ones currently in use are no longer successful. In this regard, a couple of "last resort" accommodations include leave of absence with the expectation that it would permit the employee to return to work later and perform the essential duties of the job with or without further reasonable accommodation; placing the employee on a vacant, different job for which she is quailfied that she can do with or without reasonable accommodation, even if the duties are lower level and pay is lower.
3)Getting a medical evaluation establishing that the employee is no longer able to perform the essential duties of the job in a satisfactory manner even with reasonable accommodation.
You need to be talking to the employee about these things. And bring it to the attention of the treating practitioner. At one point, of course, consider disability retirement, if your company offers it. But if you have your "ducks lined up in a row" then, yes, you can terminate.
Go to EEOC's webstie for their guidance on ADA reasonable accommodations:
[url]http://www.eeoc.gov/policy/guidance.html[/url]
Thanks Again!
Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC