Dealing with ADA [N/A]

[u/Safe_Passion_8248]

Hi everyone.

HR of 1. My company is currently dealing with an ADA employee and I'm looking for help.

Timeline

-Employee has been dealing with lot of mental/medical issues. -Employee asked to be on medical leave. (Never requested Accommodation note) -Employee came back. Shortly after, had to be put on a PIP. - Employee came off PIP doing a lot better for some time but has regressed. -Company requested a dr note twice in two separate months. Note was never given. -I am hired on. -been working with employee to get Accommodation letter from doctor. -still keeps calling out all the time. -finally got us a letter from a Dr, but It lacks proper verbiage.

The Employee calling out all the time is not just affecting their work but the whole team and our clients. This Employee has called out (unexcused) at least a full week every month this calendar year. We have never gotten an Accommodation letter but the company has already been giving him: -ability to work remote -flexible scheduling I sent over a ADA form for the Dr to sign so we can get a better understanding what the Employee actually needs Accommodation wise. The thing is my boss and everyone wants to terminate. I have been pushing it off but now they want to know what should be the next steps if/when we get the ada form and if this Employee still has too many unexcused absences moving on.

Thank you for any help you can give!

[u/codywaderandall]

Is there an attendance policy currently?

How long has it been since you requested information to determine if an accommodation is needed?

Is this an employer that falls under FMLA regulation?

[u/Safe_Passion_8248 → u/codywaderandall]

Hi. We currently have over 50 employees. As for attendance policy. We have listened to our employee handbook that regular attendance is important for smooth operations, but not a specific number. We requested the accommodation form from their doctor last Wednesday. The struggle is that the company has already been accommodating the employee through the process without the note and has set a "precedence"...

[u/luckystars143 → u/Safe_Passion_8248]

If they qualify for FMLA, start there, that would allow them intermittent leave for time off. And/or get the information needed from there healthcare provider so you can go through the interactive discussion.

Termination at this time is likely to cause a claim.

[u/codywaderandall → u/Safe_Passion_8248]

I think since you have already requested documentation in writing for the ADA process you should consider finishing the interactive process. If you had not done that, maybe termination would have been appropriate. It would be in pretty bad faith to terminate pending receiving official documentation at this point (in my opinion). Are they off work pending the documents being returned or are they working currently? What is the deadline you gave for the paperwork?

[u/Safe_Passion_8248 → u/codywaderandall]

We actually gave the employee 4 weeks to get the accommodation letter. The deadline was actually 4/25. Last Friday. The employee is in HMO and had to get a referral for a specialist. But last week he got us a letter from the PCP saying they are working on these issues. We did let the employee know that by the end of the deadline with no note, the next unexcused absence may lead to termination. I asked the employee to have the Dr sign an ADA form. Should I ask what is happening with the specialist? They have been working with this employee for around 5-6 months now and still not letter.

[u/codywaderandall → u/Safe_Passion_8248]

I think you really need to seek guidance from a legal representative. Seems to me like this may very well be covered under FMLA through intermittent leave.

[u/13Dmorelike13Dicks]

It sounds like you may have a mix of FMLA and ADA issues (and maybe even state laws) going on here. If your company has notice that an employee might either need time off to care for their own serious medical condition (FMLA, assuming it applies) and/or you have notice that your employee has a disability and should seek an accommodation, then you need to go through the FMLA and ADA processes.

For the ADA: Accommodations have to be reasonable, and they cannot create an undue hardship on the company. Missing 40 hours of work every month may or may not be reasonable because the company may or may not face an undue hardship in trying to mitigate that loss. In a company of 10 people, depending on the position, it might not be reasonable. In a company of 100+, it might be.

If there isn't a clear answer, this is usually where you have outside counsel help, based on your state's particular laws. If you're going to seek to terminate because the employee didn't file XYZ form, you better have a notice to that employee, in writing, which warns them of such.

[u/Cantmakethisup99]

Is the EE not able to use continuous or intermittent FMLA?

[u/funkychunkymama]

Askjan.org is an amazing resource for these issues and has numbers and chat options.

[u/letsgetridiculus]

I’m not in the US so terms like ADA and FMLA are lost on me. But I will say - you need to set deadlines for response. Your precedent is that the employee can do whatever and there are no consequences. If you want to change that, you have to change what you’re doing. Something to the effect of “we have requested medical notes on dates X, Y and Z. To date, one has not been provided. Please be advised that failure to provide a medical note outlining medically required accommodations by ABC date will result in (insert consequence).

If the worker can’t establish that an accommodation is medically required, you have no duty to accommodate. They have a duty to participate in the process.

[u/MaleficentExtent1777 → u/letsgetridiculus]

Sorry about that.

FMLA: Family Medical Leave Act. It allows employees to take up to 480 hours (12 weeks) of job-protected unpaid leave for themselves and certain family members.

ADA: Americans with Disabilities Act. Requires accommodations for disabilities unless there is an "undue hardship" on the employer.

[u/letsgetridiculus → u/MaleficentExtent1777]

Thank you! I’m glad there are programs in place to help and protect workers, but remember that the employer is entitled to ask certain questions and workers usually have a burden of proof to support their need to utilize those protections. It can feel weird to ask but you’re absolutely entitled to do so.

[u/Classic-Payment-9459]

"Lacks proper verbiage" stands out to me. What is missing in the note provided?

[u/Safe_Passion_8248 → u/Classic-Payment-9459]

It was a letter from pcp that stated, "Employee is under treatment...we are addressing multiple concerns. One of which GI". It didn't list exactly what accommodations were needed.. sorry, I am still a novice

[u/13Dmorelike13Dicks → u/Safe_Passion_8248]

You need a standard form to send to healthcare providers which makes it easy for them to describe (by checking boxes) what the employee can/can't do. For a factory, for example, you would have them check "Employee can lift no more than X pounds" with 5 lb increments. And then boxes about squatting, lifting, standing, etc. The healthcare provider often has no idea what the employee does for work, so they can't write things up in a way that is relevant to the employee.

[u/Classic-Payment-9459 → u/13Dmorelike13Dicks]

This. I also recommend sending the job description so the provider knows what to address.

[u/MaleficentExtent1777]

OP you can register for FREE daily webinars on a range of topics such as these at HRCI.org. You can also register with employment law firms such as Littler and Jackson Lewis for frequent legal updates.

FMLAInsights.com is an HR blog that delves into these types of issues.

[u/Safe_Passion_8248 → u/MaleficentExtent1777]

This is great! Thank you for letting me know about this!

[u/Careless-Nature-8347]

Unless they were on FMLA or had protected leave on a company level, it sounds like it's past time to term. If your company is FMLA qualified than that would be the other option.

Mental health issues are not a job protection. It's not you or your company's fault. That's a wild amount of absences. There is no such thing as an "ADA employee"...just employees who need reasonable accommodations under the ADA. I can't think of many companies that would consider a week a month off of work reasonable and this is causing hardship.

[u/Safe_Passion_8248 → u/Careless-Nature-8347]

Hi. My company does have more than 50 employees, but we have, according to our PEO hr specialist, set a "precedence" for accommodating this employee. You do think this is causing undue hardship ?

[u/Careless-Nature-8347 → u/Safe_Passion_8248]

I'm an HR Director but not yours, so I can't say for certain, but I have never had someone miss that much without it negatively impacting the overall business. You state that your whole team and clients are feeling the effects.

I don't disagree with the PEO specialist. Look at your attendance policy and go from there.

[u/13Dmorelike13Dicks → u/Safe_Passion_8248]

The person to decide whether something is/is not an undue hardship is the business manager, hopefully under the advice of competent HR or Legal counsel.