Human Resource Blog

Limits to Accomodations for worker

Hi– We have one employee who had been with us for 6 months. On January 16th he was demoted from salary to hourly based on on-going excessive doctors appointments taking him away from his duties (he had three separate appointments scheduled that week). On January 23rd he went home after returning from lunch. He was out with “pain” on the 26th and 27th of January. He was also out 30, 31 and today the 1st. Also, presumably with “pain”. We are in Florida–just how accommodating do I have to continue to be? Having one undependable employee is worse than having no employee.

The answer will depend upon whether this employee has a permanent disability, or only a temporary health problem.

There is no federal or Florida law that requires you to make accommodations for an employee with a temporary condition. If the employee is expected to make a full recovery in less than 5 months, you can treat these absences as you would any other employee with an attendance problem. Because the employee has not worked for the company for 12 months, he does not qualify for FMLA even if he has a serious health conditions. There is no federal or Florida law that requires you to give this employee time off for doctors appointments.

You should follow your usual attendance policy, including issuing written warnings for non-attendance. This may eventually result in the employee being terminated. Note that by doing so, you are not assigning blame. You are merely saying that you need an employee who can be at work regularly, and this employee is not able to do so. Also be aware that the employee may qualify for unemployment benefits if he is terminated for taking days off when he is genuinely ill.

If the employee has a permanent disability, that is a different situation. The federal Americans with Disabilities Act requires that you provide “reasonable accommodations” for an employee with a permanent disability. The ADA covers employers in every state with 15 or more workers. Many, many conditions can be a disability under ADA including severe arthritis, MS, cancer (even in remission),HIV, infertility, migraines, diabetes, etc. etc.

Unpaid time off for illness or medical appointments is a very common accommodation under ADA. While an employee must request an accommodation, by asking for time off, this employee already has.

In fact, if the employee has a disability, you may already have committed illegal discrimination by demoting him.

In order to avoid violating GINA, you need to ask this employee, “Without disclosing any genetic information, can you tell us what your medical condition is and whether it is permanent?” Then take it from there. If the employee has a disability, you will need to have a conversation with him about what accommodations are practical in your situation.

Even if you grant time off as a “reasonable accommodation” under ADA, you can ask that the employee schedule medical appointments at a mutually convenient time whenever possible. You can also require documentation of the disability, but only once — not every time he takes a day off.

This is a complex issue, so feel free to post additional questions.