Patience vs. Process

Gabe has been with the county two years and is an engaged employee.  A few months ago, he started having some medical issues at work.  He got migraines and felt ill, needing to go home unexpectedly and often.  Some days were better than others, so Gabe and his supervisor tried to identify the commonalities.  Employees were asked to assist and they did so, happy to help a well-liked colleague. 

Did Gabe have a food allergy?  Employees made certain to not have any snacks at their desks.  Supervisors and managers stopped bringing homemade treats to staff meetings.  Was Gabe sensitive to smells?  Co-workers stopped reheating more pungent foods in the microwave in the break room, stopped using scented hand lotion in the office and the co-worker with a desk nearest Gabe stopped wearing perfume. 

Still, the episodes continued.  Light seemed to bother Gabe, so some of the fluorescent lights were turned off in the office.  One employee, Veronica, told other staff she was certain Gabe had the same diagnosis as her brother, and this rumor about a specific condition spread throughout the office. Since Gabe was suffering from migraines, he told his supervisor he did not feel comfortable driving a county vehicle, but Gabe’s job required driving responsibilities. Thus Abby took on the driving responsibilities of Gabe’s workload. 

Meanwhile, Gabe ran out of sick time. The supervisor allowed Gabe to work a flex schedule, piecing the schedule together whenever Gabe was able to come to work.  Gabe would come in at 6:30 a.m. some days, come in at noon on other days, and often have Friday and Monday off.  After a few months, just as the department head asked the Facilities Department to provide a list of the chemicals used to clean the carpet, morale in the office waned and co-workers started to complain.

Brian had been taking on extra tasks to keep Gabe’s workload current, but summer was coming and he wanted to take some time off with his family.  Jill’s eyes were bothering her from the low light at her desk.  Abe requested an alternative schedule for himself. Some staff missed the supervisor’s homemade banana nut cake at staff meetings. One valued staff member transferred to another department. The department head went to Human Resources and asked “Can we terminate Gabe? I have an office to run. I’ve been patient.” 

Gabe’s illnesses may fall under Family and Medical Leave Act (FMLA) or it may fall under Americans With Disabilities Act (ADA) or both.  It is important to refer to your county’s policies and processes for each. 

Gabe should have been provided FMLA paperwork when he experienced multiple absences for illnesses, long before he ran out of sick time.  Depending on the documentation provided by his physician, his illnesses may have been protected by FMLA as intermittent leave if it met the definition of a “serious health condition.”  Retroactively designating FMLA for an illness that is not an emergency can be difficult and will rely heavily on the doctor’s documentation, your policy and your consistent practice. 

Gabe’s doctor, when presented with the FMLA paperwork, may tell Gabe that his condition qualifies under the ADA.  However, many doctors may not be that proactive.  To qualify as a disability under the ADA, Gabe’s condition would need to substantially limit one or more major life activities. 

It is possible that Gabe’s FMLA paperwork as completed by the doctor could provide enough information to indicate that his condition qualifies as a disability, and the employer then will need to begin an interactive process without asking for additional forms. Repeatedly asking for additional documentation can be viewed as delaying the process or creating barriers for the employee.  But FMLA paperwork is not designed to also qualify an employee for the ADA. Thus, the additional form and the information it collects may be necessary. Further, if an employee is seeing multiple doctors to diagnose a problem or for symptoms related to a more complex issue, the documentation may be more complicated. Medical certifications and documentations should be handled by Human Resources staff. Supervisors need to know the restrictions to the work and dates of appointments for absences, but not a medical diagnosis. 

Through the interactive process, Gabe may request additional leave as an accommodation or he may request a variety of accommodations including a change in how work is completed (such as the lights), a change in his workspace or an exception to a policy.

The purpose for the interactive process will be for the employer and Gabe to agree upon a “reasonable accommodation,” or changes in Gabe’s working conditions, that will enable Gabe to perform the necessary functions of his job despite having a disability.  This accommodation must be provided unless doing so would pose an “undue hardship” on the employer. Unlike FMLA with the 12 weeks of leave, there is no set amount of time for an accommodation under the ADA, so the accommodation could be ongoing.  The employer must consider what it can sustain for the long term and what it could reasonably provide if another employee made a similar request, although all accommodations need to be reviewed independently. 

A guiding document in this process will be the essential functions as listed in the job description or job posting.  An accommodation must allow an employee to continue performing the essential functions of his job; removing an essential function from the job description is not a “reasonable” accommodation.

When Gabe’s job was posted, the essential functions list stated: working with and around others; hearing and speech to communicate with others; and finger dexterity for writing, computer work and phones. Driving was not listed as an essential function.

Additionally, since the employer has been providing accommodations to Gabe for several months, it may be difficult for the department to argue that the accommodations that have been provided are creating an undue hardship.  Undue hardship is defined as a significant difficulty or expense; it is determined on a case by case basis and it varies based on the size of the employer, the resources the employer has to meet the request and the disruption to the work. 

If the request made by the employee poses an undue hardship, the employer must propose an alternative accommodation that does not pose such a hardship. 

It is important to remember the accommodation must arise out of a discussion that involves the employee, employer and the employee’s department with a focus on returning the employee to work.  Employers may not dictate what is best for the employee in an interactive process; similarly, an employee cannot impose a particular accommodation on his employer if another one would be sufficient.

Accommodations under the ADA should provide an environment in which the employee can perform work, so leave or time off should be the last option considered. 

Here is a rule of thumb to assist in generally separating FMLA and ADA laws: FMLA gives an employee with a serious medical condition the ability to take leave to heal and return to work.

ADA gives an employee with a disability a way to remain at work and perform the breadth of her job. 

Admittedly, this is a bit of an over simplification, as situations can get complicated and FMLA and ADA can and do intersect with some conditions falling under both laws. 

Here are some dos and don’ts for such issues:

• Do contact Human Resources early in the process
• Do send the employee FMLA paperwork, in accordance with your policy, if they have multiple absences due to illness or an ill family member.
• Do familiarize yourself and all supervisors and managers with FMLA and ADA law and policy.
• Do have essential functions listed in your job descriptions or job postings and regularly review those descriptions.
• Do engage in the interactive process if the issue falls under the ADA.
• Do not impose accommodations on an employee without an interactive process.
• Do document each meeting concerning an interactive process.
• Do not diagnose the employee or regard them as having a disability.  If an individual is regarded as having a disability, they are protected by the ADA, even if no disability exists. 
• Do apply your policies and practices consistently as failing to do so could be discrimination, subject to enforcement by the EEOC and Department of Justice.
• Do contact an attorney if the case becomes complicated, possibly involving intermittent leave, retroactively designating leave, or a challenge in finding a reasonable and effective accommodation.

It is important to remember that in most cases, employees are not abusing the leave.  They are legitimately ill or have a documented disability. Providing them the time they need to recover from illness or providing them an accommodation that allows them to positively contribute their knowledge, skills and abilities to a team benefits not only the individual, but the organization and fulfills the purposes of these laws. 

Cases of FMLA and ADA should be handled with care, equity and compassion. The processes outlined by law, policy and documentation must be followed and allowed to work, which can require patience. 

In public service, we take care of our most vulnerable community members. That embrace must also extend to our colleagues.