Imagine that one of your employees informs you that they are suffering from a chronic medical condition, and that the condition is impacting either their job performance or their ability to attend work.
As an employer, your focus should be on what reasonable accommodations you can provide to help your team member excel, working with them in an interactive process to find a solution that works both for them and your business.
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There are also a number of federal, state, and local laws that likely apply, so you should be familiar with the legal landscape and consult legal counsel as necessary to make sure you stay compliant.
Understanding the Legal Landscape
At the federal level, there are two major laws that you should be familiar with — the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). However, there are also many state and local laws that address the same or similar issues as these federal laws. You’ll need to comply with all applicable federal, state, and local laws. You’ll also need to make sure your internal policies comply with these laws and are consistently applied.
As always, it's advisable to consult with counsel to ensure compliance with all applicable laws.
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Americans with Disabilities Act
The ADA applies to private employers who have 15 or more employees. The ADA provides persons with covered disabilities with similar protections from discrimination as are provided for other protected categories, including race, color, religion, sex, and national origin under the Civil Rights Act of 1964. The law prohibits discrimination based on disability where the invidual can perform the essential functions of the job with or without a reasonable accommodation. Remember, many states and cities have similar laws which may have additional requirements, and such laws may apply to a larger number of employers and scenarios.
Disabilities under the ADA include any physical or mental impairment that substantially limits a major life activity, such as sitting and standing, or a record of such impairment. A temporary condition or impairment, including one resulting from pregnancy or childbirth, may also be considered a disability.
As for accommodations, employers have an affirmative obligation to provide an accommodation that would enable a covered employee to perform their essential job functions, unless providing the accommodation would impose an undue hardship or create a direct threat to the health or safety of the employee or other employees.
For example, if you have an office worker with seriously impaired vision, you might be able to provide them with a special computer monitor as a reasonable accommodation that would enable them to see the screen and perform their job duties.
Perhaps you have a software engineer who is deaf and might not be able to follow discussions in team meetings. To accommodate this employee, it may make sense to provide them with technology that enables them to follow meeting discussions in real time by reading text of the interactions, and participate via typed text that is displayed in real time to other meeting participants.
What’s Reasonable? Employers Should Engage in an “Interactive Process”
To ensure compliance, employers should engage in an interactive process with covered employees to determine whether there is a suitable accommodation. This process is actually an affirmative employer responsibility under some state and local ADA analogues, such as the New York City Human Rights Law.
The interactive process is a good-faith exchange of information between the employee and the employer to explore both the necessity and the options for workplace accommodations. In many instances, the employee’s health care provider contributes important information in an interactive process.
There are often many accommodations that could work for a particular situation. When there are accommodation options, the employer may generally select the accommodation that it will provide, taking into consideration the input of the employee and the employee’s health care provider. Employers do not always have to provide the precise accommodation that an employee requests. For example, if an employee requires a standing desk and requests the super-deluxe telescoping model with a cup-holder and bluetooth speakers, the employer may determine that a less expensive model (without telescoping features, and without the cup-holder and bluetooth speaker) will provide the needed accommodation and keep costs under control.
One of the ways that technology has most changed the landscape of disability accommodation in the workplace is in making remote work a viable option for a host of work-related limitations. Of course, remote working arrangements are not suitable for every job. Employees in customer-facing positions, like a cashier or retail salesperson, would probably not be able to perform their essential job duties while working remotely.
In certain circumstances, a leave of absence may be considered a reasonable accommodation. This may include providing leave that exceeds the requirements under the FMLA and state and local leave laws.
Family Medical Leave Act
The FMLA generally applies to employees who have worked for the company for at least a year, have worked at least 1,250 hours in the last year, and work at a location with 50 or more employees within a 75-mile radius. For example, if you have a New York office with 75 employees, and a California office with 10 employees, your New York employees will be eligible for FMLA leave, but your California-based employees will not. Those California workers may be eligible for leave under California law, but more on that in a moment.
Eligible employees who are unable to work due to their own serious medical condition are entitled to 12 weeks of job-protected, unpaid leave in a 52-week period under FMLA. “Job-protected” means at the end of the FMLA leave, the employee should generally be reinstated to their former position or a similar role, at the same or similar level of compensation. During the leave period, eligible employees are entitled to continuation of group health insurance.
Under certain circumstances, FMLA leave can be taken intermittently over a 52-week period. So, for example, if needed, an employee could be out of office every other week for almost half the year.
Related article: 6 Paid and Unpaid Leave Laws Every Employer Should Know About
State-specific Leave Requirements
But wait, there’s more! Many states have their own family medical leave requirements with broader eligibility criteria. Among them is the California Family Rights Act (CFRA), which is similar to the FMLA but applies to all employers with five or more employees and includes a broader definition of who constitutes a family member.
Washington, D.C.’s “DCFMLA” requires employers with 20 or more employees in the District of Columbia to provide 16 weeks of job-protected leave every 24 months to employees with a serious health condition who have worked at least 12 months and 1,000 hours. It sounds almost the same, but it’s different in a few important aspects. A number of other states also have slightly different protections that cover similar but unique circumstances.
One thing that’s important to keep in mind is that many state leave laws have broader definitions than the FMLA in terms of what qualifies for leave. If an employee qualifies for leave under state law, but not the FMLA, employers must be careful not to toll the employee’s bank of FMLA-eligible leave.
Cases also arise in which leave (whether required under the FMLA or state law or not) may be a reasonable accommodation under federal, state, or local disability laws. In other words, it can get pretty complicated pretty quickly. It’s crucial that you seek legal counsel in order to ensure compliance with all laws that pertain to the situation at hand and to your jurisdiction.
When working with an employee with a serious medical condition, your primary focus as the employer should be the employee’s ability to perform the essential functions of the job, with or without reasonable accommodation, all of which should be sorted out by way of an interactive process.
As you can see, it’s very important to think through these interrelated issues carefully, and manage disability accommodations and leave entitlements properly. Consulting with an employment law attorney in these situations can help ensure that you haven’t missed a critical step.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.