FMLA and ADA Interaction

[sensiblesolution]

My question involves labor and employment law for the state of: Pennsylvania.

I have been with the same employer for 25 years. Four years ago I received an accommodation under the ADA: my work schedule was changed to 10 am to 6:30 pm. My disability is due to a heart condition and rheumatoid arthritis (RA). For the past three years I have been on intermittent FMLA for the RA, which covers doctor visits, various treatments, and flare-ups of the disease. The flare-ups may cause me to miss entire days, to go home early, or to come in late. The disease is unpredictable, and varies in severity from having little or no symptoms, to near immobility. Starting last month I have a new supervisor (who was my supervisor four years ago), and he is causing problems for me. The most pressing problem right now is that he is questioning whether I can use FMLA to cover the time I miss at the beginning of my shift, since my work schedule has already been changed as an ADA accommodation. During the last 3 years under a different supervisor, there was never an issue. The symptoms of RA are worse in the morning, involving joint stiffness, and I do not want to drive if my joints are not limber enough for steering and braking. My arrival time fluctuates. A further complication in arrival time is that I have to wait for the freight elevator to get to work, since the regular passenger elevators do not stop on my floor. I am not physically able to use the stairs. The wait time for the freight elevator can be 20 minutes or longer.

The second problem I have with this new supervisor is that after I was out sick for 2 days under the FMLA, he became angry, humiliating me in front of a superior, and making comments about me being too sick to work, and asking me if I am suffering, and making other sarcastic remarks.

So my questions are: can I use FMLA to cover late arrivals even if my work schedule has been changed under the ADA? Does the use of FMLA make me "unqualified" under the ADA? Is my supervisor's behavior legal - it seems to me it is harrassment and an attempt to intimidate me so that I will not use my FMLA leave.

Thank you.

[Mr. Knowitall]

In terms of the ADA, the EEOC explains,

Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as the following:

• an inability to ensure a sufficient number of employees to accomplish the work required;
• a failure to meet work goals or to serve customers/clients adequately;
• a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them;
• incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.

They provide an example,

An employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m. Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one- or two-day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement. The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future. Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.

* Practical Guidance: It is best if an employee requests accommodation once he is aware that he will be violating an attendance policy or requiring intermittent leave due to a disability. Otherwise, an employer is entitled to continue holding the employee accountable for such absences without any obligation to consider if there is a reasonable accommodation that might address the problem. Moreover, prompt requests for accommodation may enable an employer to better plan for schedule modifications or absences, thus permitting an employee to get the accommodation.

In terms of the FMLA, regulations provide,

(a) Definition. FMLA leave may be taken "intermittently or on a reduced leave schedule" under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one's own serious health condition, to care for a parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See Sec. Sec. 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember's serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember's serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

(1) Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

(2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider. See Sec. Sec. 825.113 and 825.127.

(c) Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. See Sec. 825.204 for rules governing transfer to an alternative position that better accommodates intermittent leave. See also Sec. 825.120 (pregnancy) and Sec. 825.121 (adoption and foster care).

(d) Qualifying exigency. Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule basis.

Eligible employees may take FMLA leave on an intermittent or reduced schedule basis when medically necessary due to the serious health condition of a covered family member or the employee or the serious injury or illness of a covered servicemember. See Sec. 825.202. Eligible employees may also take FMLA leave on an intermittent or reduced schedule basis when necessary because of a qualifying exigency. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations.