Heard on the Employer’s Hotline – Part Two

In part one, we reviewed 3 questions we have received recently on the employer’s hotline. While we discussed these questions briefly at the 2019 HR & Employment Law Conference, we share more detailed responses here. These are real questions (some details may have been changed to protect privacy), and the Hotline’s real responses. As always, MEA Members should contact the Hotline and/or Member Legal Services with any human resources and employment law issues that arise in your business.

1. Leave as a Reasonable Accommodation under ADA

Question: An employee was approved for leave under the Family and Medical Leve Act (FMLA) and was out the full 12 weeks. The employee was approved for an additional 6 weeks of leave as an accommodation under the Americans with Disabilities Act (ADA) when FMLA expired. The Friday before the scheduled return date, the employee informed Human Resources that they would not be returning due to complications post-surgery. HR told the employee to get additional paperwork completed by his doctor. At his next scheduled appointment the employee saw the Physician’s Assistant who could not give an opinion nor clear the employee to return. The next scheduled appointment is in two weeks.

The employee works in the Maintenance Department and the company does not want to approve the accommodation any longer given how small the department is. What are their options?

MEA Response: The Member has two options:

A. If a reasonable accommodation becomes an undue hardship, an employer has the option to refuse to continue the accommodation. The determination of undue hardship is subjective and takes into account: the nature and cost of the accommodation needed; the overall financial resources of the facility/employer; the number of persons employed at this facility/employer; the effect on expenses and resources of the facility/employer; and the impact of the accommodation on the operation of the facility. Refusing to continue the accommodation would involve asking the employee to return to work within X number of days and terminating if the employee fails to return. This approach comes with it obvious risk of an ADA discrimination/failure to accommodate claim.

B. Wait for the doctor’s appointment and reassess based upon the medical information provided. This is a less legally risky approach.

2. Drug testing employees on all shifts after ambiguous allegations

Question: The company has received two allegations regarding drugs – it’s unclear whether they were referencing use or selling (they terminated an employee who was selling drugs on-site). The two allegations came from two separate employees. Both of the employees who made the allegations have left the company – their reasons for leaving had nothing to do with the alleged drug issue. Other than the allegations made, there is no reasonable suspicion that anyone is currently using. Can the company drug test the employees on all 3 shifts?

MEA Response: Based upon the policy the Member currently has in place, the Member would not be able to test its entire workforce, as the Member has not implemented a random drug testing program, nor is there reasonable suspicion to drug test any particular individuals. The Member could consult with a professional and implement a random drug testing program, although that may not be effective. A more effective approach would be to have all supervisors/managers trained in reasonable suspicion and to have employees drug tested in those situations in which reasonable suspicion arises.

3. ADA protections and dependents

Question: Do ADA protections only apply to employees and not for the care of a dependent with a protected medical condition? For example, an employee is on probation for attendance and some of her absences are due to the care of her child. She was hired only 6 months ago, so she is not eligible for FMLA.

MEA Response: Confirmed. The Member should keep in mind, however, that, while the reasonable accommodation provision of the ADA does not apply to a family member (so they do not have to give leave to care for a disabled family member under ADA), the association provision of the ADA prohibits employment discrimination against a person, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on concerns about the known disability of a family member.

About the Author

Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.