How far to accommodate? FML/ADA
Public Sector Texas
17 Posts
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.
Advice?
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.
Advice?
Comments
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.
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".
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.
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.
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.
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.
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.
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.
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.."
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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.
"(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?"
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.
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.
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.
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.