I love my readers.
Like my youngest daughter with a pile of peas, my readers devour HR-compliance wonk and nuance.
For example, last week I ran a post called, “Someone who doesn’t know that they have a serious health condition can still get FMLA, you guys.” That post was about this opinion, where a federal court held that the FMLA may apply even where an employee doesn’t know that she has a “serious health condition” and communicate to her employer that she has an illness or injury.
Could unknown FMLA issues create ADA concerns too?
As if that isn’t enough to have employers like…, a number of readers emailed me with variations of this question:
If a company assumes that an employee has a serious health condition under the Family and Medical Leave Act, are there Americans with Disabilities Act implications too?
The answer … wait for it … it depends.
While there isn’t perfect symmetry between an ADA “disability” and an FMLA “serious health condition,” it’s pretty darn close. It’s so close that the U.S. Equal Employment Opportunity Commission posits that a request for leave under the FMLA amounts to a request for a reasonable accommodation under the ADA. And when a reasonable accommodation request is in play, the employer has a duty to engage in a good-faith interactive dialogue with that employee to determine whether an accommodation exists that would allow the employee to perform the essential functions of the job without creating undue hardship for the employer.
But, here’s the thing. Under the ADA, the onus is generally on the employee to apprise the employer of not only her disability but also the need for an accommodation. So, if the employee says nothing about FMLA — let alone ADA — what’s the duty to accommodate? Maybe none.
Except, check this out. If the employer divines that an employee needs FMLA leave for an unreported serious health condition, does the employer then regard the employee as disabled under the ADA by providing that leave? Maybe. (While there is no duty to accommodate someone who is “regarded as” having a disability, terminating that employee could give rise to a disability discrimination claim.)
“How may we help you?”
When you believe that an employee is having issues at work, instead of stressing about what laws may apply, train your managers to get used to saying these five simple words: “How may we help you?”
During the course of the ensuing conversation, you’re likely to get to the heart of the employee’s performance issues. If health issues are the root cause, discharge any related obligations under the ADA/FMLA. Conversely, if there are no health issues, then your managers can, you know, manage. Problem solved.
Hopefully, problem solved.
But, buy some EPLI just in case.