It is a risk to the employer to not discuss the option of ADA accommodation. I can’t state the case, but it has been held up in the courts that employers that do not show due diligence with regards to options of FMLA can be held liable for terminating an employee as a result of a situation that is covered by FMLA. I believe that ADA may be held in the same regards.

Barrie Gross - 07 January 2011 01:16 AM

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.” - wise words. I couldn’t agree more.

Thanks for your help, everyone.  Under the above hypothetical the employee in question is basically just abusing the intermittent FMLA leave, as it seems the condition worsens every Friday afternoon and Monday morning, especially when its getting close to happy hour.

Of course none of my employees in the real world would EVER abuse the system, and so this is all just an intellectual exercise…

But your help has been very valuable. Thanks again.