Urgent FMLA/ADA Employee Question
6357505
2 Posts
I have an employee on intermittently FMLA.
Employees History:<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
The employee was hired on 8/07/2006. On June 18th of 2007 the employee had a stroke on the job; per her Doctors statement she had a history of hypertension (this was not her first stroke). She was granted (STD) short term disability starting June 19th 2007 to August 17th 2007. The employee returned to work on August 1st 2007 full time, she requested FMLA intermittently to continue her therapy and for her Doctors appointments. Her return to work statement from her Doctors recommended she have a morning and afternoon break in addition to her lunch break. EDC had no problem with granting the request. It was apparent she was not well, she walked very slowly with a cane her speech was not clear. In November 2007 she requested to work 30 hours per week because she was not getting better as quickly as she hoped. EDC granted the request on November 26 she started working 30 hours per week.
The problem is her job as a Career Consultant is performance base; she must place a certain number of clients per month and she is not performing. When supervisors try to talk with her she states she doesn’t understand or that her supervisor is harsh and not treating her fairly. The EDC/WSD must meet a certain quota so the other Career Consultants are taking on more clients to make up for her shortage. We have meet with her a couple times over the past several months to try to help or aid but she is not performing.
She sent me an e-mail today stating she wants to go out on STD, my question is when an employee with a medical history request to go out on disability can we as employers terminate her. What are our rights as employers, we would like to ensure we have exhausted all employee/employer requirements.
gloria
Comments
The employee may be entitled to leave as a reasonable accommodation under the ADA. The following is from the EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act:
Leave
Permitting the use of accrued paid leave, or unpaid leave, is a form of
May an employer apply a "no-fault" leave policy, under whichreasonable accommodation when necessitated by an employee's
disability. An employer does not have to provide paid leave beyond
that which is provided to similarly-situated employees. Employers
should allow an employee with a disability to exhaust accrued paid
leave first and then provide unpaid leave. For example, if employees
get 10 days of paid leave, and an employee with a disability needs 15
days of leave, the employer should allow the individual to use 10 days
of paid leave and 5 days of unpaid leave.
employees are automatically terminated after they have been on leave
for a certain period of time, to an employee with a disability who needs
leave beyond the set period?
No. If an employee with a disability needs additional unpaid leave
as a reasonable accommodation, the employer must modify its
"no-fault" leave policy to provide the employee with the additional
leave, unless it can show that: (1) there is another effective
accommodation that would enable the person to perform the
essential functions of his/her position, or (2) granting additional
leave would cause an undue hardship. Modifying workplace
policies, including leave policies, is a form of reasonable
accommodation.
How should an employer handle leave for an employee covered by
both the ADA and the Family and Medical Leave Act (FMLA)?
An employer should determine an employee's rights under each
statute separately, and then consider whether the two statutes
overlap regarding the appropriate actions to take.
Under the ADA, an employee who needs leave related to his/her
disability is entitled to such leave if there is no other effective
accommodation and the leave will not cause undue hardship. An
employer must allow the individual to use any accrued paid leave
first, but, if that is insufficient to cover the entire period, then the
employer should grant unpaid leave. An employer must continue
an employee's health insurance benefits during his/her leave
period only if it does so for other employees in a similar leave
status. As for the employee's position, the ADA requires that the
employer hold it open while the employee is on leave unless it can
show that doing so causes undue hardship. When the employee
is ready to return to work, the employer must allow the individual
to return to the same position (assuming that there was no undue
hardship in holding it open) if the employee is still qualified (i.e.,
the employee can perform the essential functions of the position
with or without reasonable accommodation).
If it is an undue hardship under the ADA to hold open an
employee's position during a period of leave, or an employee is no
longer qualified to return to his/her original position, then the
employer must reassign the employee (absent undue hardship) to
a vacant position for which s/he is qualified.
Under the FMLA, an eligible employee is entitled to a maximum
of 12 weeks of leave per 12 month period. The FMLA guarantees
the right of the employee to return to the same position or to an
equivalent one. An employer must allow the individual to use
any accrued paid leave first, but if that is insufficient to cover the
entire period, then the employer should grant unpaid leave. The
FMLA requires an employer to continue the employee's health
insurance coverage during the leave period, provided the employee
pays his/her share of the premiums.
Example A: An employee with an ADA disability needs 13
weeks of leave for treatment related to the disability. The
employee is eligible under the FMLA for 12 weeks of leave
(the maximum available), so this period of leave constitutes
both FMLA leave and a reasonable accommodation. Under
the FMLA, the employer could deny the employee the
thirteenth week of leave. But, because the employee is also
covered under the ADA, the employer cannot deny the
request for the thirteenth week of leave unless it can show
undue hardship. The employer may consider the impact on
its operations caused by the initial 12-week absence, along
with other undue hardship factors.
Example B: An employee with an ADA disability has taken
10 weeks of FMLA leave and is preparing to return to work.
The employer wants to put her in an equivalent position
rather than her original one. Although this is permissible
under the FMLA, the ADA requires that the employer return
the employee to her original position. Unless the employer
can show that this would cause an undue hardship, or that
the employee is no longer qualified for her original position
(with or without reasonable accommodation), the employer
must reinstate the employee to her original position.
Example C: An employee with an ADA disability has taken
12 weeks of FMLA leave. He notifies his employer that he is
ready to return to work, but he no longer is able to perform
the essential functions of his position or an equivalent
position. Under the FMLA, the employer could terminate his
employment, but under the ADA the employer must
consider whether the employee could perform the essential
functions with reasonable accommodation (e.g., additional
leave, part-time schedule, job restructuring, or use of
specialized equipment). If not, the ADA requires the
employer to reassign the employee if there is a vacant
position available for which he is qualified, with or without
reasonable accommodation, and there is no undue hardship.
Here's the website for the guidance: http://www.eeoc.gov/policy/docs/accommodation.html ; Good luck!
Stroke victims often have difficulty in the workplace during their healing time. Is there any way you can modify her job? Can you reduce her quota requirement? (sounds like you have unofficially done that). Decide just how much further you could reduce it without it being a hardship to the company.
If she still has FMLA available, she may utilize that. From the dates you gave, when she originally requested it, it doesn't appear that she was entitled. So you can only count FMLA as of her FMLA eligibility date, which appears to be 8/7/07 (one year from hire date).
She can't "request" STD. But her doctor can. I would encourage her to talk with her physician about her job, send her with a job description. If she can't do her job she may qualify for STD and later LTD if available.
Your response was clear, we understand that we have no recourse but to grant her leave for as long as she needs.
Thank you.
We definitely need to know about her remaining FMLA bank, if any. I agree with the comments RE: ADA as well.
Additionally, beyond FMLA and ADA, what do your own leave policies say? If she is entitled to STD under your own policies, it would be hard to explain to a jury why you didn't let her take it given her condition. If this goes the ADA route, you can definitely seek medical confirmation that time away from work will help her become able to perform the essential functions of her job. If time away from work will not help get her into a staet in which she can perform the essential functions of her job, then it is not an appropriate accomodation.
Another thought: if her hours are cut to 30 from 40, did you pro-rate her performance requirement accordingly? If not, I would consult counsel before taking performance related disciplinary action against her.