Imagine that one of your employees is failing to meet the expectations of their role, and you have reached the conclusion to terminate the individual on the basis of performance. Prior to delivering the news, they surprise you by disclosing that they are suffering from a chronic medical condition.
This scenario stops employers dead in their tracks, and rightly so. As an employer, your focus should be on what the employee is able to do, and what reasonable accommodations could be provided that would enable the employee to perform their job duties.
Understanding Reasonable Accommodations
You and the employee should generally sort out the answers to these questions through an “interactive process.” And at this point, the employer should, at a minimum, begin to think about the application of two federal laws — the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) — and any applicable state or local laws.
As always, it's advisable to consult with counsel to ensure compliance with all applicable laws.
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Americans with Disabilities Act
The ADA was passed by Congress in 1990, and applies to private employers who have 15 or more employees. The purpose of the ADA is to afford disabled persons similar protections from discrimination as are provided for other categories, including race, color, religion, sex, and national origin under the Civil Rights Act of 1964. The ADA requires employers to engage with employees in an interactive process and determine whether the employee is “disabled,” and if so, whether there is a “reasonable accommodation” that would enable the employee to perform their job duties.
Under the ADA and many similar state laws, employers have an affirmative obligation to enter into an interactive process with, and provide a reasonable accommodation to, a disabled employee (including employees with medical conditions that limit the employee’s ability to perform their job duties), unless providing a reasonable accommodation would impose an undue hardship or create a direct threat to the health or safety of the employee or other employees.
The purpose of the ADA is to afford disabled persons protections from discrimination.
For example, if you have an office worker with seriously impaired vision, you might be able to provide them with a special computer monitor, as a reasonable accommodation, that would enable them to see the screen and perform their job duties.
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Perhaps you have a software engineer who is deaf, which condition doesn’t strictly impede their ability to perform his job duties. However, such employee might not be able to follow discussions in team meetings. To accommodate this employee, it may make sense to provide them with technology that enables them to follow meeting discussions real-time by reading text of the interactions, and participate via typed text that is displayed real-time to other meeting participants.
What is an “Interactive Process?”
The interactive process is a good-faith exchange of information between the employee and the employer to explore both the necessity and the options for workplace accommodations. In many instances, the employee’s health care provider contributes important information in an interactive process.
Often there are many accommodations that would work for a particular situation. When there are accommodation options, the employer may select the accommodation that it will provide, taking into consideration the input of the employee and the employee’s health care provider. Employers do not always have to provide the precise accommodation that an employee requests. For example, if an employee requires a standing desk, and requests the super-deluxe telescoping model with a cup-holder and bluetooth speakers, the employer may determine that a less expensive model (without telescoping features, and without the cup-holder and bluetooth speaker) will provide the needed accommodation and keep costs under control.
For a host of office workers, remote working arrangements can be a viable option.
One of the ways that technology has most changed the landscape of disability accommodation in the workplace is in making remote work a viable option for a host of work-related limitations. Of course, remote working arrangements are not suitable for every job. Employees in customer-facing positions, like a cashier or retail salesperson, would probably not be able to perform their essential job duties while working remotely.
However, for a host of other office workers, remote working arrangements can be a viable option. If you do allow an employee who needs an accommodation to work from home, make sure that you establish crystal clear job expectations, including performance metrics. Generally speaking, the job expectations of a remote-working employee should be no different than the job expectations for other similarly-situated employees.
Taking leave is also considered a reasonable accommodation for certain employees, as outlined in the Family Medical Leave Act (“FMLA”).
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Family Medical Leave Act
The FMLA was passed by Congress in 1993 in an economy that exhibited rapid growth in the workforce, partially due to an increase in female representation among workers. President Clinton’s first term agenda called for a federal regulation that would provide relief for blue collar workers who desired to raise a family or take time off to attend to a family member’s or their own illness.
FMLA generally applies to employees who have worked for the company for at least a year, have worked at least 1,250 hours in the last year and work at a location with 50 or more employees within a 75-mile radius. For example, if you have a New York office with 75 employees, and a California office with 10 employees, your New York employees will be eligible for FMLA leave, but your California-based employees will not.
Eligible employees who are unable to work due to their own serious medical condition are entitled to 12 weeks of job protected, unpaid leave.
Eligible employees who are unable to work due to their own serious medical condition are entitled to 12 weeks of job protected, unpaid leave in a 52-week period under FMLA. “Job protected” means at the end of the FMLA leave, the employee should generally be reinstated to their former position or a similar role, at the same or similar level of compensation.
FMLA leave can be taken intermittently over a 52-week period. So, for example, if needed, an employee could be out of office every other week for almost half the year.
But wait, there’s more! A number of states have their own “version” of FMLA with broader eligibility criteria. The most infamous is the California Family Right Act (CFRA) which has all the same work history requirements but applies to employees working at locations with 50 or more employees in a 75-mile radius.
Washington, D.C.’s creatively named “DCFMLA” requires employees with 20 or more employees in the District of Columbia to provide 16 weeks of job-protected leave to employees who have worked at least 12 months and 1,000 hours with a serious health condition every 24 months. It sounds almost the same, but it’s different in important aspects. It’s like a parallel universe, and a number of other states have ever-so-slightly different protections that cover not-quite-the-same circumstances.
Additionally, there are situations in which an employer is providing both a reasonable accommodation in addition to FMLA job-protected leave, and such leave must also comply with state leave entitlements. Cases also arise in which leave under FMLA is the reasonable accommodation. In other words, it can get pretty complicated pretty quickly. It’s crucial that you seek legal counsel in order to ensure compliance with all laws that pertain to the situation at hand and to your jurisdiction.
You’re right to be concerned when an employee informs you that they have a serious medical condition. Your primary focus as the employer should be the employee’s ability to perform the essential functions of the job, with or without reasonable accommodation, all of which should be sorted out by way of an interactive process.
To address these situations, you can begin by asking a few questions.
- How many employees do I have? Are my employees protected by the ADA or similar state law? Do I need to engage in an interactive process? Do I need to provide a reasonable accommodation?
- How long has the employee worked for the company? Even if the employee’s worksite has sufficient number of employees to be covered by FMLA, has the employee been here long enough to be eligible?
- What other rights might this employee have under state or local law? What leave entitlements apply to this employee? Does our city or state have a paid sick leave law that would provide them with some additional limited benefits?
As you can see, it is very important to think through these interrelated issues carefully and manage disability accommodations and leave entitlements properly. Consulting with an employment law attorney in these situations can help ensure that you haven’t missed a critical step.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.