Tuesday, June 23, 2009

Do you know? Handling a chronically ill employee

In the June 19 New York Times, Lesley Alderman provided chronically ill employees some practical information on how to protect their jobs while coping with a chronic illness. Employers also have to protect themselves from liability in the same situation. Two laws govern employees with chronic illnesses: the Family and Medical Leave Act and the Americans with Disabilities Act. It is crucial for employers to understand how these two laws intersect and interact.

The FMLA allows for 12 weeks of unpaid leave for, among other circumstances, an employee’s own serious health condition. A serious health condition is defined as illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a health care provider. Only those who have been employed for at least a year, and who have worked a minimum of 1,250 hours in the preceding year, are covered by the FMLA.

Unlike the FMLA, the ADA covers employees on day-one of employment. The ADA also differs from the FMLA in the scope of injuries and illnesses it covers. The FMLA merely requires a serious health condition that prevents the employee from working on a temporary basis (typically at least three days). The ADA, however, requires that the employee must have a current, chronic medical condition that substantially limits one or more major life activities on an ongoing basis. The ADA does not have a leave requirement, although it does require employers to reasonably accommodate employees’ disabilities. Under the ADA, once an employer learns that an employee might need a reasonable accommodation to perform the essential functions of the job, the employer must engage the employee in an interactive process to determine what that reasonable accommodation might be. An extended leave of absence, beyond the FMLA’s 12 weeks, might be reasonable accommodation, depending on the illness or injury, the nature of the job, and the employer’s needs.

The biggest mistake an employer can make is to terminate an employee automatically upon the expiration the FMLA-leave entitlement, without giving any consideration to whether that employee is covered by the ADA and whether a temporarily extended leave or other temporary job restructuring will enable that employee to remain employed.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.