If you are reading this blog post then chances are you are in one of three situations: 1) an Employee is suing you under the Americans with Disabilities Act (“ADA”) for failing to provide a reasonable accommodation; 2) an Employee asked for sick leave or extended leave under the Family Medical Leave Act (“FMLA”) and are now asking for an extension; or 3) an Employee made a comment to you and that comment has made you wonder if you should be doing more. This post is going to focus more on the last two scenarios because if you are being sued for failing to make a reasonable accommodation, you should seek an Attorney pretty fast to ensure you are preserving your best defenses from the beginning.
I also want to make a couple of assumptions known before continuing – this post assumes that you are a qualified employer, the employee is a qualified employee, and your company is subject to the ADA. This is a crucial first step when even determining if a reasonable accommodation, or the interactive process, is needed, but is one that will not be discussed here. Lastly, this is a very broad overview of reasonable accommodations – this subject is very fact intensive and should be analyzed further by an Attorney if you are truly worried.
The ADA is a federal law which does in fact create preferential treatment of one employee over another. In fact, Courts have said that by definition, the ADA requires employers to treat employees with disabilities differently that employees without one. Due to this, you have to be careful about what is being asked of you.
When to begin the Interactive Process
FMLA Leave or Sick Leave
As an entrepreneur that is subject to the FMLA and ADA requirements, you may not have known that the two federal regulations could cross paths. Even if you did everything right under the FMLA regulations, you may have failed under the ADA requirements. When an Employee is out on extended leave, or FMLA leave, their disability could qualify under the “covered employee” definition of the ADA. When this happens, you have to be careful with conversations. The Employee may not be knowingly making an ADA request for a reasonable accommodation today, but could find out tomorrow after you have denied it.
Here is one type of scenario that you need to be concerned with. When you receive an FMLA request to be out for the full 12 weeks, and you grant it, you may be required to extend that leave another couple weeks or months.
If an employee brings a doctor’s note to you and the note tells you that the employee is almost ready to come back to work but really needs a couple more weeks off, this should send alarms off in your head. Just because the employee has used all of their sick leave, personal leave, and has exhausted their FMLA leave, you may be required to give them more leave under the ADA’s reasonable accommodation. This is because the Courts have found that extending leave is “reasonable” when it is not an “indefinite leave.”
This of course gets a little trickier when the employee has been out for 12 weeks and is then coming back in and asking for an additional 8 months of leave. Or, better yet, the doctor’s note tells you that the employee cannot come back tomorrow and she is unsure when the employee will be able to come back. When you’re dealing with these situations, call your Attorney.
Random Request for an Accommodation:
You have to be listening to your employees when they come in and make complaints about their back hurting, or not being able to drive at night time, or not being able to hear or see while at work, or not being able to concentrate without their pet snake being beside them. What you may dismiss as a common complaint could turn around and bite you tomorrow because you dismissed it.
Best practice is to say, “How can I help you?”
That’s right – when an employee comes forward and says something to the effect of “Man, I could really use [Insert Anything Here] because of my [Insert any Condition Here],” you should immediately be wondering if the ADA applies. Worst case scenario, the ADA applied and you ignored it – now having to pay an Attorney to fix everything.
The next most important thing to do is, DOCUMENT EVERYTHING. This part is so important that I am going to bold, italicize, and underline it. As soon as the employee made the request – I could really use X – you should be taking notes about what the employee said and what you said to help. This way, you can send the notes to your lawyer and your lawyer can make sure you’re protected.
Just because an employee has asked for a specific accommodation, “I could really use my pet snake at work to help me calm down,” does not mean you have to give that specific accommodation! (Let’s be real, who wants to work when their co-worker has a pet snake slithering around!) As the employer, you have the right of choosing what is reasonable. You just have to go through that interactive process of talking it over with the employee.
As always, the Attorneys at Stock and Leader, LLP are happy to further counsel you and your employees on the ADA, or other leave laws, to ensure you are doing everything you can to stay compliant. Remember, asking an Attorney today could save you thousands in time and money tomorrow.
Citations:
The Americans with Disabilities Act of 1990, as amended, 42 USCS §§ 12101 et seq
EEOC Fact Sheet – “The FMLA, the ADA, and Title VII of the Civil Rights Act of 1964”
U.S. Airways Inc. v. Barnett, 53 U.S. 391, 122 S. Ct. 1516 (2002).
Ruggiero v. Mount Nittany Medical Center, 2018 US App. LEXIS 15056 (3rd Cir. 2018)(unpublished)
Sessoms v. University of Pennsylvania, 2018 US App. LEXIS 16611 (3rd Cir. 2018)(unpublished)
