Determining a reasonable accommodation for an employee with medical needs while adhering to the laws under the Americans with Disabilities Act (ADA) can be a complicated process for even the most intellectual among us. ADA rules include far more facets and variables than other employer policies such as paid medical leave or time off. When choosing a reasonable accommodation under the ADA, employers have three options – they can accommodate the restriction within the employee’s position, accommodate with a leave of absence or accommodate with a job reassignment.
We spoke at the recent Disability Management Employer Coalition (DMEC) FMLA/ADA Employer Compliance Conference. In our presentation, Intermittent ADA: How to Determine Whether or Not the Accommodation is Reasonable, we explored issues related to accommodation requests, documentation and the interactive process through the hypothetical lens of characters from The Big Bang Theory – Dr. Sheldon Cooper and the HR director at his employer, Caltech.
So imagine Sheldon knock…knock…knocking at the door to human resources, looking disdainfully at HR director Mrs. Webb, questioning her reasoning when he, in fact, believes “if I were wrong, I’d know it,” and see what kind of genius you would be if faced with these scenarios. Even when supporting the most animated of characters, as we did in our skits, we can remember these takeaways and correctly apply the rules of intermittent ADA accommodation.
Skit 1 – Make sure the employee understands their responsibilities
Sheldon, a theoretical physicist at Caltech, is dealing with depression and frequent anxiety attacks after having his computer stolen with all of his mathematical equations and anti-gravity invention. He was called in to speak to the HR director after leaving work without telling his boss or getting someone to cover his class. The HR director told him that this is not acceptable. He needs to provide a doctor’s note, let his boss know in advance and coordinate coverage for his class.
Sheldon will need to take time off periodically to manage his ongoing mental health issues. The HR director asked Sheldon to obtain a note from his doctor. Here are the factors that determine when intermittent leave is reasonable:
- When an employee can perform the essential functions of the job but needs extra time to manage their condition
- When there is no undue hardship on the company in approving and implementing the reasonable accommodation for the employee
- When an employee has exhausted their FMLA entitlement or is not eligible for FMLA and has a qualifying disability
With intermittent leave, employers must focus on the needs of the employee while balancing the business needs of the organization. Key steps for employers include:
- Obtaining medical documentation from a physician that specifies what the employee needs, including frequency and severity (time off, breaks, etc.)
- Maintaining clear communication with the employee regarding expectations for following departmental and human resource policies (call-in policies, etc.)
Skit 2 – Engage in the interactive process to develop a plan for the intermittent leave
Once the HR director received the doctor’s note, she began discussing what type of break schedule would work for Sheldon while complying with ADA rules and Caltech’s policies.
Below are some helpful tips for effectively responding to intermittent leave requests:
- Read the doctor’s information to get a better understanding of what the employee’s limitations are
- Discuss with the employee what will help them perform the essential functions of their job
- Explain what you can accommodate and what you can’t accommodate
- Request doctor appointments/treatments be conducted during off-hours, if possible
- Find ways to work together that are mutually beneficial for both parties; you don’t have to accept the employee’s accommodation, you can choose the most effective
- Don’t be afraid to try the accommodation on a trial basis
- Repeat the agreed upon accommodation back to the employee
- Be sure to clarify that intermittent leave is not a license to come and you go as you please – this is the number one misconception
Skit 3 – The value of documentation
After beginning his intermittent leave accommodation, Sheldon missed 11 days in three months and was called in to speak to the HR director. He wanted to add this time to his ADA leave, but these days were not related to his anxiety; he was late or off for other reasons. The HR director had all of this documented, which helped her explain the difference between this type of time off and intermittent leave to Sheldon.
Key information to document:
- The reason the employee calls in for an absence or is late
- Conversations you have with employees concerning their need or use of leave; include the following details:
- Date and time of the conversation
- Exactly what the employee tells you specifically the reason for the leave
- Dates of the leave
- Performance and attendance issues separate from their ADA claim
In episode 20, season one, Sheldon said, “Oh, yes, it was a lot of work to accommodate you in my life. I’d hate for that effort to be in vain.” We certainly hope that after reading this you can take the lessons learned and apply intermittent leave without feeling like your accommodation efforts have been in vain.
- Partner with the employee and find ways for the reasonable accommodation to work for both parties
- Document everything all the time
- Hold employees accountable for absences that are unrelated to their condition
- If intermittent time is more frequent then doctors note and a pattern has been established, ask for updated medical information
- Enforce all attendance policies especially call-in policies
- Make sure the employee has established a pattern of non-compliance with frequency and duration limits before you contact the doctor or discipline the employee
While we’ve had some fun with the characters in our scenarios, the real-world need for intermittent ADA understanding and support is real. The answers may not be as easy as “bazinga!” but it is possible to provide the right guidance and find ways to help your employees. Sheldon needed intermittent leave due to his mental health concerns, however there are many different reasons employees may need this type of accommodation. In each case, it is important to understand the employee’s responsibilities and the employer’s obligations, and ensure all protocols and procedures are followed while focusing on the employee’s well-being.