Whether a worker's medicalcondition involves only a single statute or a laundry list of laws,workplace policies in place may cause serious confusion foremployers.

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Handling an employee's medical or mental condition, especiallyone that requires a gap in working, is complicated and stressfulfor everyone involved, including the HR representative,well-meaning supervisors and the employee themselves. Theseincidents usually prompt responsibilities under the Family and Medical Leave Act (FMLA), theAmericans with Disabilities Act (ADA), various workers'compensation statutes, and multiple state laws. In actuality, it'sdefinitely possible that each of these laws will be in place, allat the same time. Depending on the circumstances, the PregnancyDiscrimination Act (PDA) could also bubble up in this statutoryalphabet soup.

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Related: Expanding paid-leave regulations make workers' compmore complicated

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Whether the matter involves only a single statute or a laundrylist of laws, workplace policies in place may cause seriousconfusion for employers. A group of health care facilities inupstate New York, Absolut Care, recently learned this the hard way.The company's purported “100-percent healed” policy, which requiresan employee be approved to work by a physician without anyrestrictions before returning to work, was central to thecontroversy. The existence and implementation of this policy led toa $465,000 settlement filed by the Equal Employment OpportunityCommission (EEOC) on behalf of multiple employees who were disabledor pregnant.

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Seemingly non-discriminatory policy leads to massivesettlement

The EEOC alleged that Absolut failed to accommodate disabledworkers, subjected them to unnecessary medical tests, and treatedpregnant employees less positively than non-pregnant employees. Thebiggest issue, however, seemed to be the company's policy thatbarred disabled employees from returning to work unless they coulddo so without any medical restrictions.

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At first look, this result may seem puzzling. After all, doesn'tan employer have the right to require an employee to be able toperform all the essential functions of the job, especially if thatrequirement treats all employees the same way? Simply put, yes –but with restrictions.

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Companies should conduct individualized assessments

In the Absolut case, however, the main problem is that theemployee was required to perform those duties with or without areasonable accommodation. With a policy that required an employeeto be “100-percent healed” before returning to work, Absolutskipped the critical step of learning if those employees couldperform essential job functions with a reasonable accommodation. Ifeffective reasonable accommodations existed, the employer had alegal obligation to offer one. And, in this case, they didn't.

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The Absolut example highlights an important point; the failureon the company's part to at least consider possible accommodationsbefore concluding that an employee cannot perform a job likelyviolates the law. The employer has a duty to consider, and evenresearch, feasible accommodations even if the employee does notexpressly ask for one. Instead, the employer should have recognizedthe need to consider an accommodation, especially because they havea legal obligation to do so.

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In Absolut's case, the EEOC specifically challenged theemployer's denial of employee leave (i.e., time off) as anaccommodation. Besides the “100-percent healed” policy itself, thisscenario also highlights the importance of training supervisors tospot potential accommodations issues before they become a problem,and then ensuring they confer with their human resourcesrepresentatives.

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Managing the alphabet soup of statutes

So with the Absolut case in mind, what can employers do tobetter protect their employees and themselves in these situations?First, understand the fundamentals of these laws; these statutesall prohibit discrimination or retaliation against employees whoexercise related rights. Wherever possible, supervisors should notget involved in evaluating or even seeing the details of anemployee's medical or mental conditions.

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Next, identify and focus on the requirements that make eachstatute unique: the FMLA, for example, provides job-protected leaveand benefit protections when applicable. The PDA ensures thatpregnant employees are not treated differently than non-pregnantemployees in any respect (and although pregnancy itself is not adisability, some complications of pregnancy are protected by theADA). State workers' compensation statutes provide medical servicesand some income replacement for employees who experience workplaceillness or injury.

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Finally, the ADA actually requires you to provide reasonableaccommodation to an otherwise qualified applicant or employee, ifthe accommodation would enable the employee to perform theessential functions of the job. Additional job-protected leave,beyond the requirements of the FMLA, may be considered a reasonableaccommodation. Concentrating on these distinct requirements, whichoften apply simultaneously, can help companies avoid overlookingany of its legal duties.

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It is vital to gather complete information and involve subjectmatter experts, like HR representatives, as soon as issues likethis emerge. Involving HR early also helps you ensure consistencyin responding to such circumstances. It is crucial to develop apaper trail to help demonstrate that all alternatives (and legalduties) were considered before making any final decisions,especially if the decision is unfavorable to employees.

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As a final point, consistent application of these practices canhelp employers manage troublemakers and others who may abuse theirrights.

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Kevin Troutman, is a partner in FisherPhillips' Houston office. Troutman focuses his practice onlitigation and providing day-to-day advice regarding a variety ofemployment and people management issues.


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