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ADA/FMLA Quandary
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ADA/FMLA Quandary
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Help! I have an ADA-qualified employee who can no longer perform the essential functions of his present position. We've exhausted the possibilities of accomodations, and I've been searching for a posi
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Forums » Topic Forums » Legal Forum » ADA/FMLA Quandary
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ADA/FMLA Quandary
posted at 7/24/1999 7:29 AM EDT
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Posts: 11
First: 7/24/1999 Last: 3/3/2000 |
Help! I have an ADA-qualified employee who can no longer perform the essential functions of his present position. We've exhausted the possibilities of accomodations, and I've been searching for a position for him in other departments. One has recently come open -- a 9-1-1 Calltaker. One major problem: attendance at the Calltaker position is vital (duh!), and this guy also uses intermittent FMLA leave for a wife with MS (intermittent, in this guy's case, translates to 3-4 days/mo, no matter what shift he's assigned.) How can I, in good conscience, place this guy in such an attendance-crucial position? |
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ADA/FMLA Quandary
posted at 7/25/1999 11:04 PM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
Quandry indeed.. however, it'd be a problem denying him the position based on his FMLA entitlements. You're stuck there.
You're in better shape, IMHO, looking at options under the ADA - is the transfer really reasonable, or are you just trying to find a place to put the employee? The ADA mandates an active participation in accomodation discussions - discuss the options with the employee, first assuming that he agrees that he can't perform the essential functions of his present position, w-w/o accommodation. He may not want the position, or the solution may be training a back-up. |
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ADA/FMLA Quandary
posted at 7/26/1999 3:41 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
This is a tough one. Under the ADA, a disabled person (apparently, you are satisfied that your employee is disabled; if not, he is not entitled to a reasonable accomodation) is qualified if able to perform the essential functions of a position, with or without a reasonable accomodation. Under the FMLA, an employer must treat FMLA-protected leave as if the employee was present.
From your perspective, there is no available reasonable accommodation, with the possible exception of reassigning the employee to the 911 calltaker position, which I assume is a safety-sensitive position. Your view of this matter, I assume, is that the employee is not otherwise qualified for that reassignment because a 911 calltaker must have exemplary attendance, not merely attendance that would be satisfactory for employees in some other positions. (Presumably, this fact is refelcted in the job description, absence control policies, etc.) Alternatively, your claim might be that the employee would pose a "direct threat to the health or safety of other individuals in the workplace." For an interesting discussion of the "direct threat" rule, take a look at EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997). Under either approach, the basic problem from your point of view is that the employee cannot do the 911 calltaker job based on his present attendance pattern. But wait, he says (at least if he has a sharp attorney!). You cannot hold FMLA leave against me-- it's as if I actually showed up those days. My attendance, he claims, was exemplary, once FMLA is considered. See 29 CFR Sec. 825.702 ("An employer must therefore provide leave under whichever statutory provision provides the greater rights to employees.") Maybe your best approach is to try to avoid the problem by searching for another reasonable accomodation, if at all possible. After all, a dialogue over what accomodation is reasonable is what the ADA contemplates. In a worst case scenario, you may need to resort to Jim's sensible suggestion of training a backup, or creating some other coverage scheme. |
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ADA/FMLA Quandary
posted at 7/27/1999 12:17 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
Under ADA, you only need to offer as a reasonable accommodation a transfer to vacant position, when all other reasonable accommodations to allow the employee to remain on the current job are or would be ineffective, you have a regular practice of reassigning employees to other positions, the second job is equivalent (not promotional) to the first, and the employee QUALIFIES for the second job.
Assuming that you have established that one of the requirements for the other job is no more than "x" percent absence rate and have enforced it with incumbants, and the employee has demonstrated a pattern of absence in excess of that rate, then it seems you could claim that the employee is not qualified for the position. Courts do seriously consider the absences as a disqualification when the employer has a policy addressing excessive absences, and has enforced it. You don't have to reassign the employee to the other position if there would be other reasons than his disability that would prevent the employee from performing that job. But talk to the guy. He may have some good ideas for other reasonable accommodations. As far as the FMLA is concerned, my understanding is that when intermittent leave is occurring, an employer may require the employee to transfer to an equivalent position for which the employee is qualified and which BETTER accommodates the periods of intermittent FMLA leave. Thus, if true, it seems that you would be consistent with FMLA if did not transer the employee to the 911 Call taker position because the intermittent leave would NOT be better accommodate but worse (again, assuming you have an established, enforce policy regarding attendance for the 911 Calltaker position that is more demanding than the current position). You may need to talk to your legal counsel. |
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