FMLA/ADA

yellowbrickroad · March 2007

A few weeks back an employee suffered a stroke (right side). She is able to speak realatively clearly however she is unable to write which is essential to the job she has. Her Dr released her for 6 hours a day if tolerated, but the writing is a huge issue. We came up with some other job duties she could perform for 4 hours everyday. She has had several outburst's since she is back, she says we are mean and we are trying to kill her she needs to work full time. We are unable to have her work full time due to her inability to write legibly. Dr says she is having physical therapy it may get better. She also has some short term memory problems. We feel like we are between a rock and a hard place. Help.

marc · March 2007

Some of this stuff is really tough.

First, I would give the job description to the lady and have the Dr go through and set any limits on the return to work authorization. The Dr should be an ally for both of you during this time.

Second, this may be morphing from an FML issue to an ADA issue. Either way, you need to know what her limitations are so you can discuss any sort of reasonable accomodation.

It sounds like you cannot reasonably accomodate the inability to write. Is there any disability insurance in place to help with the lost income?

yellowbrickroad · March 2007

I beleive the Dr released her to work because of pressure from the employee. When I sent the Health Cert I included the job description. The Dr says she can work 6 hours per day if tolerated and subject to her ability to write. We only have enough for her to do 4 hours per day. Unfortunately no disability insurance so that is rough.

stilldazed · March 2007

I would follow Marc's steps as well. I think you are currently talking about FMLA that can transition into ADA without warning, so you should address the current issue and prepare for the other at the same time. Send a position description with the employee that outlines her essential duties. Ask for medical certification on what she can physically do and ask for a timeline. Count FMLA time as it should be counted, communicate clearly to the worker that any change in her physical status or the end of the FMLA period is subject to change your options to keep her working. As long as she has FMLA, keep her insurance benefits in place. When FMLA is exhausted, stop her insurance, offer Cobra, and review her current work/ability status. Take your next step based on your finding at that time. If she can perform enough essential duties to work full time, then she can keep the position. If she can't, you still have a business need to fill the position full time, you owe your other workers fairness, and you owe her the truth. She may not like it, but her options at that time may be to move to a different job, whether it be full time or part time, but she must be able to perform the essential duties with or without reasonable accomodation, and you should not make a job for her. Remember, whatever you do for her, you should be expected to do for the next one. As she has already done, she will probably continue to express her dissatisfaction with the outcome of your actions, which is all the more reason to ensure that you are legal, consistent, and nondiscriminating. Hang in there.

yellowbrickroad · March 2007

This whole mess makes me crazy. She is working 4 hours and the stuff she is doing takes others half that time. I beleive I can send another health cert with job description again for a re-evaluation. She has a dr. appointment 3-30-07.

marc · March 2007

Getting another certification for FML purposes has some limits unless her condition has changed.

stilldazed · March 2007

Definitely understand the frustration. Have been there and done that, but take great care about mixing subjects, especially when it comes to something as difficult as FMLA. In your frustration you describe a potential work performance issue, and there may be one, but if it is the result of FMLA, FMLA is going to protect the worker until FMLA is expired. If it is not FMLA, do not use FMLA as a solution to another opportunity, and if the borderline work performance has not been addressed with this worker before FMLA, do it but do it very carefully and in different discussions that when FMLA is addressed. Also, as an aid to prove your company's consistency, do it with other workers who work performance is borderline as well.

Aside from that, close your eyes for a second, take a breath, exhale slowly, thind for a second of a clear day on the beach in the tropics, you're there in a lounge chair or hammock, feet propped up, slight breeze blowing, hear the breeze in the trees and the waves breaking on the beach, and savor the moment--for just a moment. Now open your eyes and get on with business.

Best wishes.

HR In NH · March 2007

I think this employee deserves your support and you do have an obligation to attempt to provide reasonable accomodations. However, you can not do it alone.

Try this link at the US DOL website.

[url]www.dol.gov/dol/topic/disability/jobaccommodations.htm[/url]

This page is dedicated to ADA accomodations and free employer resources. I'm sure that you get a better idea of what can be done to help accomodate this employee.

Also, check out this link below.

[url]www.jan.wvu.edu[/url]

This is for the Job Accomodation Network, a free organization dedicating to helping in these situations.

Good luck!

System · March 2007

Since this employee has to write as a major function of their job, is it feasible to purchase (as an accomodation) software that allows them to dictate their spoken words which then is printed out on a computer?

Texas Katz · March 2007

Several years ago I suffered two small strokes that limited my ability to read, remember HR material, write, and talk, so I guess I can relate to what your employee is going through.

With hard work and determination, I was able to return to my "normal" self. And, I should note, if it wasn't for my trusted HR assistant, I don't know if I would have recovered as quickly as I did!

You can expect some outbursts from someone suffering from this condition because the employee will feel very frustrated at his/her current "condition." No one likes feeling "different, let alone "limited." What I found frustrating was I could think clearly and formulate my thoughts correctly, I just could not communicate those thoughts to my boss or my customers.

From my own personal experience--give your employee some breathing room. The more pressure you put on her, the worse the situation will become. Gradually build up the work, at a level she can handle. I think you will find she will appreciate your support and understanding and this may help the healing process. Again, this is my own personal thoughts on the matter, because it happened to me...

FMLA/ADA

Comments