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Jun11

Small Companies and Medical Leave

I run a small company of 14 employees. One of my employees requested time off for anxiety, depression and breathing issues. She left work on March 28th, 2017 and was supposed to return in mid-April. She went to the doctor again in April before her return and was still not able to return to work. The doctor requested she come back in early May. Well early May came around and she went to the doctor again and the doctor still said she was not able to return to work and excused her until the end of May. Again the time passed she went to the doctor the end of May and he excused her until early June. Well again she has gone to the doctor and he feels she is not ready to return to work. She is a sales person and required to be cognizant, able to interact with customers and remember orders – she can do none of these things according to the three doctor’s notes we have received. She has been out for 73 days now, is not on FMLA because we are a small company and don’t qualify, and not out on short-term disability because she doesn’t have coverage. However, my sales staff and office manager have been covering her duties and taking care of her customers. I’ve had to hire someone to assist in keeping the office productive. This has become a problem and because Colorado is an at-will state I feel I have the right to terminate her employment – can I?

Though the employee may not be covered under the FMLA, she may be covered under the ADA.

The federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

Though there is no all inclusive list of covered disabilities, clinical depression and anxiety disorders are often covered under the ADA. But, not everyone with these conditions will be covered.

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

Basically, in order to be protected under the law the employee’s conditions must inhibit her from performing major life activities (i.e. caring for oneself, performing manual tasks) and hinder her job performance.

The ADA requires employers to engage in an interactive communication process that involves a good faith effort by both parties to determine limitations imposed by the disability and possible reasonable accommodations.

You’ve already provided an accommodation to the employee by allowing her to take a leave of absence. But, it may beneficial to speak with the employee about any accommodations she believes may help her to perform her job.

Types of reasonable accommodations vary greatly depending on the employee’s limitations. Examples of accommodations include job restructuring, alternate or modified work schedules, short term leave of absence, or telecommuting.

Employers are not required to implement every accommodation the employee requests. The accommodation(s) must be reasonable, meaning it doesn’t cause the employer extreme hardship or expense. Further, massive modifications to an employee’s job so significant that the position no longer resembles its initial purpose are not considered reasonable.

If any accommodations are agreed upon make sure to get the employee’s doctor to sign off on them. Provide the doctor with the employee’s job description and suggested accommodations.

Details of the accommodation and start date should be placed in writing and given to the employee. Retain all documentation associated with the accommodation including accommodation requests, meeting notes, supporting medical documentation and details of the accommodation provided. Such information must be kept in a file separate from the employee’s regular personnel file.

Now, if there are no other reasonable accommodations that will allow the employee to perform her job then you must consider what types of leaves of absences you’ve provided to other employees in the past. It’s best to treat this employee in the same manner as other similarly situated employees have been treated. As previously stated, you’ve already accommodated the employee by providing her a leave. So, just make sure that you provide her with the same amount of leave that other employees have been given.

Let’s say you don’t have a past practice of providing leaves then termination may be warranted. In this case, let the employee know that you’ve already provided her with over two months of leave time and you cannot hold her job any longer. Give her a specified date for which she must return to work (maybe give her until the end of the month if you can) or be terminated for being unable to work. Be sympathetic to the employee but remember you do have a company to run.

HTH!

This entry was posted on Sunday, June 11th, 2017 at 2:38 pm and is filed under
Labor Laws, Termination.
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