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Burden of ADA notification
Posted: 05 January 2011 06:48 PM   [ Ignore ]
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Let’s assume for a moment that there is an employee who has developed asthma, among other things.  He has been intermittently using FMLA leave per his doctor’s suggestion, over the last few months.  He is close to using up all of his leave.

Let’s further assume he decides not to return to his position full time as the job requires, once his leave expires…or at least resists.

Does his employer have a duty to suggest that his condition may fall under the ADA and suggest accomodations, or is it his duty to request that?

Assume that it is clearly an undue hardship to allow him to return to his old position and only show up part time….he could be accomodated by offering a part time position, but that would necessarily require a reduced salary, and fewer benefits.  Is that an acceptable accomodation?

anyone?  anyone?  Bueller? anyone?

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Posted: 06 January 2011 03:57 PM   [ Ignore ]   [ # 1 ]
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Frank -

The cases make it clear that the employee doesn’t have to use any “magic words” to trigger the obligation to engage in the interactive process to determine if there’s a reasonable accommodation, so I think it’s best for the employer to address the question.  (Although I wouldn’t assume that asthma by itself is necessarily a disability under the ADA.)  The cases also say that attendence is always an essential job duty, so I don’t think the employer is *required* to offer the part time position.  Nevertheless, if the emplyoer wants to offer it, I think that it likely would be considered a reasonable accommodation, even though it would mean a reduction in pay and benefits.

Evan

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Posted: 06 January 2011 04:00 PM   [ Ignore ]   [ # 2 ]
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I would not recommend the employer initiating the issue of disability, for fear of subsequently being accused of “regarding” the employee of being disabled.

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Posted: 06 January 2011 04:02 PM   [ Ignore ]   [ # 3 ]
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Regarding the burden of ADA notification, it is my opinion that the burden lies with the individual to request accommodation. 

In addition, it is my opinion that the employer has the right to require the returning employee to be at work on a full-time basis.  If the position is a full-time one, requiring the employer to hire another part time employee to fill the duties of the position, is an unreasonable accommodation.

If the returning employee is unable to return to work full-time, that should be documented with a valid return to work form completed by an physician, preferably an occupational medicine physician familiar with the job description and the demands of the job in question.  The employer should require the returning employee to have such an occupational medicine review before the employee is certified able to work.

Naturally, the employee may be permitted to apply for a different position if she/he wishes to do so.

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Posted: 06 January 2011 04:03 PM   [ Ignore ]   [ # 4 ]
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Under most circumstances, I’d agree with you Phyllis, but where they’ve already been providing leave under FMLA, I think the greater risk is that a plaintiff’s lawyer makes the argument that they failed to engage in the interactive process.

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Posted: 06 January 2011 04:03 PM   [ Ignore ]   [ # 5 ]
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It is my opinion that you would want to have a conversation with employee informing them that they could be eligible for an accommodation under ADA; however under no circumstances would I offer the employee the accommodation. It’s really up to the employee and/or their doctor to reveal the abilities and limitations of the employee in accordance to the requirements for the job. As you mentioned, moving to PT will affect other benefits that the employee could see as a negative offer to attempt to get them out of the FT position (yikes!)

So yes, I believe the employer has a duty to inform the employee of their eligibility under ADA for accommodations and show “good faith” in working with the employee to reach an acceptable compromise for both parties. If you have an acceptable accommodation, I would at least wait to offer it after the employee has provided an accommodation that may be unrealistic.

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Posted: 06 January 2011 04:08 PM   [ Ignore ]   [ # 6 ]
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I’m not an attorney, but here’s my opinion:
You need to have a determination on whether his asthma meets the definition of a serious health condition under the ADA. (It most likely does.) It sounds like you are aware or that he’s put you on notice that he may have an ADA-qualifying disability. So, yes, you have an obligation to talk with the ee about ADA accommodations. I would ask the employee to have his dr. fill out ADA medical assessment and list any required accommodations needed.  There needs to be a medical necessity for the accommodation. If his dr. says he cannot work FT as a result of his disability, then he may have a legal right to an open PT position for which he is qualified that is at the same or lower pay level.  If his dr. does not indicate that he cannot work FT or does not list PT as an accommodation, then there is no obligation to place him in a PT position. If accommodations are needed, then you have an obligation to engage in an interactive process - to talk with the employee about what can be done and what can’t.  Just because an EE asks for a specific accommodation doesn’t mean that’s the only accommodation. 

The EEOC has a number of handy ADA guides. Here’s the URL for one of them:  http://www.eeoc.gov/policy/docs/accommodation.html#intro

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Posted: 06 January 2011 04:13 PM   [ Ignore ]   [ # 7 ]
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Your policy should advise employees what the process will be if they are unable to perform in their position at the expiration of FMLA.  The return to work documentation should provide guidance as to the employee’s condition and what, if any, the restrictions the employee has.  The employer should wait to find out the employee’s situation before launching into an accommodations discussion and raising the issue of a perceived disability.  The employee may only need another week off and then he/she will be able to return to full duty.  If the documentation shows that employee does have a permanent impairment then the employee and employer should engage in the interactive process to determine if an accomodation is possible.  If the employee can only work part time, the employer has to review their own policies to determine whether the accommodation can be made.  The employer does not have to create a position in order to accommodate an employee.  If a part time position is available, the employee takes the position at the pay and benefit level of the position offered.  In all situations, the employer must be consistent in the treatment of this and other employees.

Hope this is helpful

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Posted: 06 January 2011 04:16 PM   [ Ignore ]   [ # 8 ]
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My understanding is that under the new ADAA, the disability no longer needds to be a “permanent” disability for it to be considered an ADA-qualifying disability. It only needs to impact the listed life functions. If anyone has more insight on this, please share it.

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Posted: 06 January 2011 04:35 PM   [ Ignore ]   [ # 9 ]
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Clearly, it is the employee’s duty to identify the accommodation he is requesting.  Normally, this starts the interactive process.

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Posted: 06 January 2011 04:36 PM   [ Ignore ]   [ # 10 ]
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1.  First, one must separate the actual FMLA issues from the potential ADA issue.
2.  The FMLA issues are whether he is released to return to work on a full-time basis by his treating healthcare provider. It should not be the employee’s choice to return to a work schedule other than full-time. The employer, not the employee, should control such situations.
3.  You should use a Return To Work Certification form for obtaining such information, including any restrictions/limitations on his performing the essential functions of his job.
4.  If he is not released to return to work on a full-time basis, as the job requires, then you would begin the “flexible, interactive process” required by the ADA. Yes, the employer must initiate the discussion since it knows of the disability and restrictions imposed by the healthcare provider.
5.  Offering him a part-time position (the same as he currently has or a different one) is not, according to EEOC, a required accommodation. If you choose to offer such a position, the reduction in salary and benefits is not discriminatory, as long as they are consistent with benefits offered other part-time employees.
6.  Remember: the burden of proof will always be on the employer to demonstrate why an accommodation is not reasonable or would create an undue hardship. So, make sure your interactive process is well-documented so that such proof could later be provided.

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Posted: 06 January 2011 05:27 PM   [ Ignore ]   [ # 11 ]
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The FMLA and ADA legal issues are separate, but as a practical matter the facts may affect both.  Asthma is one of those conditions that may or may not be a “disability” under the ADA due to the individualized nature of the condition.  However, the better practice is usually to assume that it is a disability, particularly when it has required the employee to be absent so much.

1.  The employee’s right to return to work following an FMLA leave is to return to the same position as they had.  Thus, the right to return to work is only to the full-time job that the employee has had.

2.  However, the employee may require an accommodation to return to that position (ADA issue).  Furthermore, the employee may believe that due to the medical condition he is unable to return full-time, requiring a part-time position (ADA issue).

3.  Suggestion:  Dear employee:  As you know, your FMLA leave will expire on [date].  You are therefore expected to return to your regular, full-time position on that date.  If you believe that you require an accommodation to return to your full-time position, or if you do not believe that you can return to that position even with an accommodation and would like to apply for another vacant position with the company that you think you are eligible for (with or without an accommodation), please provide me with a certification from your doctor stating whether or not you are able to return to your regular position, and any accommodation that might be needed in order to return to that position or another vacant position.  Any accommodation that is suggested will be considered by the company to determine whether or not it is reasonable.

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Posted: 06 January 2011 05:31 PM   [ Ignore ]   [ # 12 ]
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I really do think we’re putting the cart before the horse.  I wouldn’t even bring up accommodation until the employee requested one, submitted return to work documentation indicating the need for one or returned to work and appeared to need one.

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Posted: 06 January 2011 05:40 PM   [ Ignore ]   [ # 13 ]
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(I am not sure if the issue takes place in California and FEHA applies)

If the employer knows or has a reason to know that an employee might have a disability, the duty to comply with ADA disability laws is triggered. A number of FMLA leaves with presumable provided medical paperwork likely place the employer on notice of disability / serious medical condition, so engaging in interactive process and putting the horse in front of the car might be the right and the ethical thing to do. 
As one of the members mentioned above, no magic words are required to trigger the duty to accommodate, so waiting till the employee, who might not even know what his disability rights are, is requesting accommodations is creating a ticking bomb, especially if the employer is a larger company. 

Since the burden of proving undue hardship on the employer, I would never assume that accommodating is an undue hardship. In practice, this defense rarely works, especially in cases of large employers with significant resources that create expectations of ability to accommodate, and think outside the box when it comes to the various ways that an employee can be accommodated.

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Posted: 06 January 2011 08:16 PM   [ Ignore ]   [ # 14 ]
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Lots of good info here from so many people - just wanted to add my two cents.  In my view, this employer is already questioning whether the employee has a disability under ADA.  Therefore, I don’t think it’s wise to try to avoid the issue.  The employee may or may not be a qualified employee with a disability but it’s better for everyone in the long run to try to figure it out now so a plan can be put in place that protects the employer while addressing whatever employee rights apply.

IF the employee is a qualified employee with a disability: 

-  Accommodations usually need to be requested (but magic words aren’t required).  If it’s not requested, you only need to accommodate if the “known” disability impairs the employee’s ability to know of, or effectively communicate a need for, an accommodation that’s obvious to the employer.  My plain English translation:  If the employee says he can’t return from FMLA leave to his FT position but he could do the same job on a PT basis, consider that to be a request for a reasonable accommodation.  Don’t stick your head in the sand.  The ADA and FMLA sometimes overlap.  If both laws do apply, you can’t require them to return to their FT job from FMLA leave before considering whether to make it a PT job under the ADA.
-  Modifying someone’s work schedule, including making a FT job into a PT job, is expressly considered as a possible reasonable accommodation under the ADA.  That’s mean having to hire another PT person is not necessarily an undue hardship.  But if it is, you’d have to try to identify another accommodation that’s not an undue hardship.

One more thought: you said the employee is almost out of FMLA leave.  But don’t forget - depending on how the 12 month period for FMLA leave is calculated (rolling 12 months??) the employee may soon become eligible for more FMLA time off.  In that case, providing a part time schedule may be on the table again under the FMLA, not the ADA.

Hope this helps.  Good luck.

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Posted: 06 January 2011 08:23 PM   [ Ignore ]   [ # 15 ]
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Forgot to answer one of your questions: 

If it’s an undue hardship to change the position to PT and there’s no other accommodation for him in his current role, you generally don’t have to create a new position (unless you do that for others).  However, if you have open PT or FT positions for which the employee is qualified (WITH or without a reasonable accommodation), it’s okay if the job comes with a lower salary and fewer benefits than his current position.

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