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Your Employee Matters


By January 1, 2009No Comments

Here are some notes from the recent California medical leave case of Forough Nadaf-Rahrov v. Neiman Marcus Group, Inc., which involved a seamstress whose doctor said her disability made it impossible for her to do her job:

  • When an employee seeks accommodation by being reassigned to a vacant position in the company, they satisfy the “qualified individual with a disability” requirement of the ADA by showing that they can perform the essential functions of the vacant position with or without accommodation.
  • The position must exist and be vacant, and the employer need not promote the disabled employee.
  • If there are vacant positions available, you might want to identify them to the medical provider to see if the employee would be qualified to work any of them. This obligation might include future known vacancies.
  • If a necessary accommodation is obvious but ignored; if the employee requests a specific and available reasonable accommodation that the employer fails to provide; or if the employer participates in a good faith interactive process and identifies a reasonable accommodation but fails to provide it, an employer may be sued.
  • An employer need not provide repeated leaves of absence for an employee who has a poor prognosis of recovery. However, the mere fact that a medical leave has been extended repeatedly does not necessarily establish that it would continue indefinitely. In some circumstances, an employee might need to consult directly with their physician to determine the employee’s medical restrictions and prognosis for improvement or recovery.
  • An employee can take unscheduled intermittent leave repeatedly, over nine hours per week, without exhausting their allocation of FMLA leave for a full year. Of course, this can result in staffing and morale problems.
  • In the case of a medical emergency, an employee may show after the fact that their absence was due to a qualifying disability as long as they do so within a reasonable timeframe.
  • Although regular attendance is considered to be an essential part of almost every job, absences from work are not automatically disqualifying. If an employee exceeds the employer’s absenteeism standard, due to a disability, the employer’s right to discipline or discharge depends on the circumstances of the case. Relevant considerations include:
    • The degree of absenteeism.
    • The degree to which the employee’s absences are predictable.
    • The degree to which employee’s absences adversely affect the business or ability to get the job done; and.
    • Whether the employee has any paid vacation leave or sick leave that could cover the absence.

As an employer, you face a number of challenges in this area:

  • What exactly does the word “serious” medical condition mean?
  • What does “intermittent” leave mean and how long does it last?
  • How should you deal with unforeseeable employee leaves?
  • How much information can you require before approving leave? What if you don’t trust or disagree with the medical information provided?
  • To what degree may you enforce your attendance requirements and what other rules impact on this, including the ADA and FLMA?

As you can see from this case, leave management is full of employer traps. Remember, if you have more than 15 employees, the ADA applies. If you have more than 50, the FMLA does too. Better yet- both laws change in January and you’d better be prepared!