Business Guidance / Insurance Protection

Dear HR – ADA Implications of Extended Medical Leaves

Prolonged medical absences with indefinite timelines and lack of clear justification can be paralyzing to business leaders and HR managers, particularly in smaller work environments. Although employers may feel entitled to more information than the employee is providing, they may not be entirely clear about the implications of asking for medical documentation.

Employers with less than 50 employees not subject to the Family & Medical Leave Act in particular, may adopt less rigorous procedures when dealing with medical leaves. And, in what I’ve seen become more of the norm, employers in this space are not requiring documentation from employees to medically substantiate their time off. In some cases, employers remain patient and give the employee every benefit of the doubt. In other cases, employers grow impatient and move forward, often with a premature decision to terminate employment.

Be Mindful of Disability Discrimination Laws
It’s common to hear about managers and HR directors to unknowingly disregard applicable disability laws when making leave or employment-related decisions. On the federal side, the Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. While Pennsylvania generally follows the ADA, the threshold is 4 or more employees. New Jersey’s threshold is 1 or more employees. Otherwise, these states follow the ADA in terms of general medical qualifications.

My sense is that employers’ concerns are twofold: First, involving a doctor may result in a medical recommendation that the employer doesn’t like or want to hear. Second, there is a perception that pursuing a medical opinion will prolong the absence further. However, time and time again, I see employers’ frustrations only escalate when employees’ absences continue based on their own self-diagnosis and the only apparent accommodation is more leave.

Why Seek a Medical Opinion?
Generally, the medical information an employer should be seeking from a medical professional for any potential impairment under the ADA, is:

  1. Whether or not the illness or injury qualifies as an ADA impairment (e.g., that it substantially limits one or more major life activities), and
  2. Whether or not the employee is able to perform the essential functions of his or her job, with or without a reasonable accommodation.

Employers who fail to require employees to obtain a medical opinion may be placing their organizations at risk, denying employees their rights under the ADA and/or state law, and potentially prolonging the absence they are hoping to bring to closure. Consider a normal decision-making process, which typically involves using informed judgment as the basis, and careful consideration backed sometimes by opinions of industry experts or employees with significant experience and/or specialized knowledge. Making an employment decision related to a prolonged absence / potential disability situation should be no different. By requiring a medical opinion, employers will likely bring clarity to the situation, better understand the potential duration of the leave period, and in accordance with the ADA’s requirement, gain an understanding of what essential job functions employees are able to perform with or without a reasonable accommodation.

Not All Conditions Qualify as ADA Impairments
It’s important to know whether or not the ADA is even applicable. In some cases, an employer may not know for sure until the medical documentation is received. In other cases, it may be more obvious that the medical condition is more or less likely to qualify as an ADA impairment. For example, a broken arm, although serious and potentially very much limiting an employee’s ability to do their job, is likely not an ADA impairment, given its temporary nature. Pregnancy itself is also not considered an ADA impairment. However, complications during pregnancy or after childbirth may very well be ADA impairments. Similarly, the need for surgery may not be an ADA impairment, however the conditions that result from surgery may be of a lasting, permanent nature that fall under the definition of ADA impairment. Finally, certain diseases such as epilepsy, diabetes, bipolar disorder and cancer should, according to the Department of Labor, be easily concluded to be ADA impairments.

A few points to keep in mind:

    1. Other than ordinary eyeglasses or contact lenses, improvements made by mitigating measures are not considered when determining whether or not a medical condition is an ADA impairment.
    2. Less severe restrictions on daily life may still qualify as an ADA impairment – each case requires an individual assessment and should not, according to the Department of Labor, require extensive analysis.
    3. Employees who are regarded as having an impairment may qualify under the ADA, based on how they’ve been treated because of a physical or mental impairment, rather than on what an employer may have believed about the nature of the person’s impairment.

What are Essential Job Functions?
If the reason the job exists is to perform that particular function, then it’s considered an essential job function. For example, an essential function of a commercial vehicle operator is to drive. An essential function may also be a function that only a few employees are able to perform or a function which is so highly specialized that the employer hires people into the position specifically because of their expertise in performing that function. In our example, the medical provider will need to understand which of the employee’s job functions are essential to be able to determine whether the employee is able to perform those functions, with or without a reasonable accommodation. A few simple steps are advisable here:

    1. If the employee has a documented job description, the manager should circle or highlight for the provider which functions the manager believes are essential. Provide the employee with a marked-up version of his or her job description and request that the employee take it to their medical provider.
    2. If the employee does not have a documented job description, the manager should either develop a description and highlight which functions are essential or develop a list of essential job functions for the medical provider.
    3. In either of the above situations, the employer should request that the medical provider determine whether or not the employee needs an accommodation to perform their essential job functions and explain that accommodation.
    4. As part of the above process, the employer should try to anticipate the impact of certain essential functions being impacted and understand the reasonableness of accommodating a request to limit or eliminate those functions from the employee’s position either temporarily or permanently

Accommodation Requested – Reasonable?
Should there be an accommodation request from the medical provider, it is the employer’s responsibility to determine the reasonableness of any such accommodation request. Let’s say that the medical provider returns with a recommended accommodation for the employee in our example. Maybe it’s for additional time away from work, a modified work schedule, or even a change in job or responsibilities. How should the employer determine reasonableness?

Accommodations that are determined to be reasonable when put into place do not become unreasonable unless they are placing an undue hardship on the business operations of the employer. Undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial or disruptive or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship

A costly accommodation may be enough to constitute an undue hardship, especially for smaller employers who may have limited resources. Relatively inexpensive accommodations can also result in undue hardship; it depends on the type of business and other factors. For example, lowering the volume of music in a dance club to accommodate hearing sensitivity of an employee would detract from the club’s ambiance, and possibly cause financial harm to the business.

Undue hardship to one employer may not be to another. Many different factors must be taken into consideration when deciding whether an accommodation would pose undue hardship to the employer. It’s important to note that an employer must show how much actual cost or disruption a proposed accommodation would involve, to prove undue hardship. It’s not enough to assert potential or hypothetical hardship. You need objective information which can be a challenge to document.

Bottom Line
An employee’s own opinion of their medical situation, while important, should not be the only basis for approving or denying medical leave or workplace accommodations. While many short-term illnesses or injuries may be appropriate to assess without the need for a professional medical opinion, decisions made with regard to extended leaves of absence can be murky and involve significant risk of discrimination and/or retaliation claims. In the case of our example employee, his diligence in updating the employer is admirable and should be commended. However, for the reasons outlined above, a three-week absence with no clear indication of when the employee may return to work, should be supported by appropriate medical documentation and, if justified, accompanied by the employer’s reasonable accommodation determination and analysis of undue hardship.

Managing the many responsibilities that fall to human resources coupled with the challenges presented by managing employee leaves of absence can be difficult. The HR Consulting Practice at Univest Insurance provides clients with a broad range of HR compliance, operational and payroll services. To learn more about how we can support your HR team, contact us at 267.646.4467or devinej@univest.net.

 

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