Human Resource Blog

ADA, depression, and attendance

Is an employee who has problems getting to work on time because of depression medication covered byt the ADA? FMLA? What steps should be taken to determine this?

Thanks!

Yes, the employee is covered by the FMLA and may very well be covered by ADA, as well. Under the federal Family and Medical Leave Act, the employee is entitled to up to 12 weeks of unpaid, job-protected leave for a serious health condition. Depression often qualifies as a serious health condition. FMLA can be used intermittently, a few hours here and there as necessary. The employee must be given FMLA papers within 5 business days, and the serious health condition must be certified by the employees doctor. To prevent the employee from abusing FMLA, have the doctor specify the length and frequency of time that the employee needs off.

Once the employee has used all FMLA leave, ADA may apply. Chronic depression is often a disability under ADA, the Americans with Disabilities Act. Under ADA, an employee is entitled to reasonable accommodation for a permanent disability lasting longer than 5 months. Again, the employee would have to submit proof that his or her condition is a disability.

Employers who are covered under FMLA are required to grant it to qualified employees, regardless of how inconvenient it is. However, the employer is under no obligation to grant an accommodation under ADA if it is an undue hardship for the employer.

The ideal outcome, of course, is for the employee to get sufficient treatment so that he or she can come to work on time every day.