Pressing Questions on Reasonable Accommodations under the ADA and FMLA

Navigating employee disability issues and providing reasonable accommodations is often incredibly challenging for employers who must comply with the ADA, FMLA and various state and local laws.

Employers need to thoroughly understand their legal obligations and implement a process for responding to accommodation requests and engaging in the interactive process. In a recent XpertHR webinar, Fox Rothschild attorney Andrew Russell provided helpful tips when it comes to navigating reasonable accommodations to stay compliant with the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Webinar participants asked some great questions about some particularly perplexing issues:

 

What does “regarded as having an impairment” mean?

To be “regarded as” having a physical or mental impairment means an employee or applicant experiences discrimination because of an actual or perceived impairment. An employee does not actually have to have a disability or an impairment that substantially limits a major life activity in order to be protected by the ADA.

Is pregnancy a disability under the ADA?

While a normal pregnancy without complications is not a disability under the ADA, a pregnancy-related impairment, even one arising from a healthy pregnancy (i.e., severe morning sickness, gestational diabetes, lower back pain), may qualify as a disability for purposes of the ADA, triggering the need for reasonable accommodations.

An impairment may also arise from the interaction between pregnancy and an underlying health condition. Be sure to consult relevant state and local laws which also may provide protections for pregnant women and require reasonable accommodations.

Is drug use protected by the ADA?

A person currently using illegal drugs or illegally using controlled substances (i.e., prescription drugs) is not considered disabled under the ADA. Illegal drug use doesn’t include prescription drugs taken under the supervision of a licensed health care provider.

Keep in mind some states permit the use of medical marijuana by patients with certain health and medical conditions, and some states permit recreational marijuana use. However, a recovering drug addict may be considered disabled if the individual is in a supervised rehabilitation program or is rehabilitated and no longer using drugs.

Is alcoholism covered by the ADA?

An alcoholic may be protected under the ADA and viewed as an individual with a disability However, an employer may discipline, terminate or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to such an extent that he or she is not qualified for the position.

Is anxiety and depression a disability?

The ADA provides expansive protections to both physical and mental disabilities including anxiety and depression.

Is an employer required to reach out to disabled employee on regular basis to “check in”?

It is best practice to continually reach out to an employee with a disability who has been provided with an accommodation to see if the accommodation is working or if any modifications need to be made. You also may want to see if the employee is experiencing any discrimination retaliation or harassment. Keep thorough notes and records of all communications.

Are emotional support animals protected under the ADA?

Emotional support animals or comfort animals may be used as part of a medical treatment plan as therapy animals, but they are not considered service animals under the ADA where a service animal is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed must be directly related to the person’s disability. Keep in mind the definition of a service animal varies by states and some states have expanded the definition to include assistive animals, such as support animals.

Is telecommuting a reasonable accommodation?

It depends. Allowing an employee to telecommute may be a reasonable accommodation if the employee’s disability prevents the employee from successfully performing their job on-site and the job, or parts of the job, can be performed at home without causing the employer significant difficulty or expense. This may be unreasonable for some jobs and in-person attendance also may be an essential function of the job.

Does a reasonable accommodation request have to be substantiated by a doctor’s note?

If an employee request a reasonable accommodation, an employer may generally ask medical questions and require medical documentation from a health care provider to support the employee’s request. It is critical to keep all medical records and information confidential and in separate medical files.

Can an employer terminate an employee who exhausts FMLA leave?

An employee may not be automatically terminated after using his or her 12-week entitlement to FMLA leave. The employee may be entitled to additional leave under a state family and medical leave law, a state paid sick leave law or the employer’s own policy providing greater leave rights than the FMLA.

If all forms of required leave are exhausted, consider if additional medical leave may be a reasonable accommodation under the ADA or state disability law without creating an undue hardship.

What happens if a job is eliminated due to a reorganization while an employee is out on FMLA leave?

An employee on FMLA leave has no greater right to reinstatement or to other benefits and conditions of employment than if he or she had been continuously employed during the FMLA leave.

But if the employer lays off an employee on FMLA leave during a legitimate reduction in force (RIF), the employer will have the burden of showing that the employee would not have been otherwise employed at the time of the requested job reinstatement.

What can an employer do if a new employee who has not been employed for 12 months requests FMLA leave?

To be eligible for FMLA leave, an employee must have:

• Worked for the employer for 12 months;
• Worked 1,250 hours in the previous 12-month period; and
• Be employed at a worksite with 50 or more employees within a 75-mile radius.

However, under the ADA, if the individual is a qualified individual with a disability, the employee is eligible to request and receive reasonable accommodations from day one of employment, regardless of the time served or hours worked. A request for leave must be evaluated under the ADA, regardless of whether, the employee is covered by the FMLA, the employee is eligible for FMLA leave or the employee has exhausted FMLA leave.

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