How can an employer keep obligations straight under the ADA, workers’ compensation and FMLA? Administering a leave of absence under any of these laws can be complicated and matters can get even more confusing when multiple laws apply to the same situation. In a recent BLR webinar, Audra K. Hamilton and Jonathan Mook outlined employer obligations under the FMLA, workers’ compensation, and ADA.
They provided a lot of guidance on administering a leave of absence when multiple laws apply. They also answered questions from webinar participants regarding ADA, FMLA, and workers’ compensation specifics. Here are some of their questions and answers.
Q. If an employee needs to see a medical doctor for ongoing treatments, can the employer ask them to take the time off either at the beginning or end of the day, instead of the middle of the day? Is this a reasonable accommodation?
A. The need to take leave to see a healthcare provider certainly is a valid request for reasonable accommodation under the ADA. It could also be a valid reason for intermittent leave under the FMLA, depending on the circumstances. Under both the ADA and the FMLA, the employer could request that the employee see if they could structure their medical visits so that it is least disruptive for the employer’s operations.
If the employee says that they cannot structure the medical visits either at the beginning or end of the day, however, the employer may be stuck. This is a circumstance where it is important to take a common-sense approach on both sides in requesting schedule changes. The employee’s health will need to be prioritized when the schedule cannot be changed.
Q. If an employee is hired to work in a very stressful job, and later states that they have hypertension and are worried about the stress from the job triggering their hypertension—is this covered under ADA?
A. The EEOC has said that stress in and of itself is not an impairment that would rise to the level of a disability under the ADA, but when hypertension – which is a medical, diagnosable, physical impairment – is involved, then potentially the answer could be yes, it may be covered under the ADA. If someone is diagnosed with hypertension, the question becomes whether or not that condition substantially limits a major life activity and thus would be considered a disability. It may well do that, depending upon the nature of the hypertension, how serious it is, and what major bodily functions or life activities may be limited.
For an employer in this situation, it may be wise to consider this as a request for a reasonable accommodation and proceed accordingly. The next action would be to talk with the employee about ways to reduce the stress level on the job, because various changes in the manner in which a job is performed can constitute a reasonable accommodation. The employee may have ideas on how to make the job less stressful, such as additional guidance on how best to perform tasks.
Q. When it comes to determining whether someone is disabled, what about people who are overweight?
A. That’s actually a really big issue right now. The EEOC has taken the position that just being overweight is not necessarily a disabling condition for the employee, but that someone who is morbidly obese may have an impairment that rises to the level of a disability. It is an evolving area of the law at this point and the EEOC seems to be moving toward having at least the morbidly obese and perhaps even some obese people classified as disabled. In the past, a related condition was generally the rationale for the disability assignment, not the obesity alone, but this may be changing. It is something to watch.
Q. What can you do if you require a medical certification for an employee taking FMLA leave, and they don’t return it within 15 days as required?
A. If you made it clear when you gave them the certification form what the penalty would be, then you can tell them that the FMLA leave is not approved because they failed to return the required certification form in time. The consequences of that action will then depend on the specifics of your absentee policy, assuming the employee takes the leave anyway.
If you have a fairly uniform absenteeism policy and the employee doesn’t have any remaining vacation or sick time and this new leave doesn’t count as FMLA, then the penalties for taking it may include disciplinary action of some kind. However, it’s important to use common sense. If the employee has a good reason for returning it on time, then you can give them additional time if appropriate.
Q. Does ADA apply in cases of pregnancy?
A. The EEOC has basically said that a person who has a normal pregnancy is not disabled under the ADA because they don’t have a physical impairment. However, complications of a pregnancy could rise to the level of a disability, depending on how serious those complications are. The best answer is that it depends on the circumstances.
For more information on the intersection of the ADA, workers’ compensation, and FMLA, order the webinar recording of "Leave Law Compliance: How to Master FMLA, ADA, and Workers’ Comp Overlap." To register for a future webinar, visit http://catalog.blr.com/audio.
Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: "Americans with Disabilities Act: Employee Rights and Employer Obligations" and "Americans with Disabilities Act: Public Accommodations and Commercial Facilities."
Attorney Audra K. Hamilton, of counsel with the law firm of GlassWilkin in Tulsa, Oklahoma, represents employers in all stages of litigation and administrative matters. Her experience includes representation of employers before federal and state trial courts, the Equal Employment Opportunity Commission, state employment security commissions, and arbitrations.