IS RUDOLPH DISABLED?

Charging Party Rudolph files an EEOC charge alleging disability discrimination and harassment against his employer. His charge states:

I am Rudolph.  I am a long term employee at Santa’s Workshop in the North Pole, under the direct supervision of Santa Claus.   I have been discriminated against because of my actual disability (cosmetic disfigurement) and/or my perceived disability and/or a record of my disability (my disability has been documented in numerous stories and songs) in violation of the Americans with Disabilities Act.  I am in need of accommodations to do my job and my supervisor knows this—leading the other reindeer on Christmas Eve causes severe chapping of my nose due to consistently strong headwinds.  Further, I have been harassed by my coworkers who laugh, call me names, and exclude me from their reindeer games because of my disability in violation of the Americans with Disabilities Act; the harassment I have endured is well known to all, even the children of our community.

Santa receives Rudolph’s charge of discrimination and is incredulous: How could Rudolph do this during the busiest time of year—doesn’t he know I have to check millions of boys’ and girls’ names on the list?  His charge isn’t accurate: in fact, all of the reindeer love Rudolph, they shouted out his name in glee!

What do you think: Is Rudolph Disabled? Does he require an accommodation? Use the checklist below to determine if Rudolph fits within the ADA/ ADAAA definition.
Definition of Disability (after January 1, 2009): A physical or mental impairment that substantially limits a major life activity, or a “record” of such a condition.  The ADA also covers an individual who has been “regarded as” having a disability, which mean that s/he was subjected to an alleged discriminatory action because of an impairment (unless the impairment was minor and transitory).

The Checklist:

DOES THE INDIVIDUAL HAVE A CURRENT DISABILITY

Does s/he have an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Is a major life activity affected by the impairment? Yes ___ No____

If yes, identify the major life activity:___________________________

(e.g., walking, speaking, breathing, hearing, seeing, thinking, standing, interacting with others, communicating, performing manual tasks, bending, caring for oneself, reading, sleeping, working, eating, or major bodily functions)

Does the impairment substantially limit the major life activity? Yes___ No______

Describe the limitation: ______________________________________________

(Discuss what the individual cannot do as well as what the individual is able to do.  Compare the individual’s ability/ limitations to those of the average person. Analyze the condition without medication, mitigating measures or behavioral modifications.)

How long is the condition expected to last?___________________________________

DOES THE INDIVIDUAL CLAIM S/HE HAS A “RECORD OF” A DISABILITY?

Does s/he have a record of an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Was a major life activity affected by the impairment? Yes ___ No____

If yes, identify the alleged major life activity:___________________________

(e.g., walking, speaking, breathing, hearing, seeing, thinking, standing, interacting with others, communicating, performing manual tasks, bending, caring for oneself, reading, sleeping, working, eating, or major bodily functions)

Did the impairment substantially limit the major life activity? Yes___ No______

Describe the limitation: ______________________________________________

(Discuss what the individual cannot do as well as what the individual is able to do.  Compare the individual’s ability/ limitations to those of the average person. Analyze the condition without medication, mitigating measures or behavioral modifications.)

How long did the condition last?___________________________________

HAS THE INDIVIDUAL BEEN “REGARDED AS” HAVING A DISABILITY?
Does s/he claim s/he has been “regarded as” having an impairment? Yes ____ No___

If yes, what is the impairment?_____________________

Does s/he claim that s/he has been subjected to an allegedly discriminatory employment action because of an actual or perceived impairment? Yes ____  No______

Is the impairment minor and transitory? Yes _____   No ____

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CURBING LEAVE ABUSE DURING THE HOLIDAY SEASON

ornaments1‘Tis the season to be jolly, and for shopping, entertaining, decorating, caroling, cooking, eating and generally enjoying life.  So who can blame employees for getting a little, well, “creative” and taking “liberties” in explaining their need to be away from the office during the holiday season?

As many HR professionals will attest, each December sees a spike in “sick leave” and FMLA and ADA accommodation requests, and not just because it is cold and flu season!  Not only do employees face many tempting distractions, but many employees have accrued sick days which they will lose if they do not use them by December 31st.  So, the first “achoo” or sniffle is reason enough for a sick day . . . or is it?

ABSENT
Take these steps now to combat sick leave, ADA, and FMLA abuse:

Holly10. Establish and Enforce Call-In Procedures

To help reduce the effects of last minute no-shows, employers may draft and enforce company call-in procedures. Does the call-in policy require employees to call in and speak with their supervisor, a member of management, or human resources by a specified time before the shift? If so, ensure employees are following the policy and aren’t circumventing it by leaving voice mails, or worse, sending e-mails.  If an employee does leave a voice mail or send an email to report a sick day, make sure either a manager or HR representative calls him or her as soon as possible to verify the need for leave.

Holly9.  Develop a Script

When an employee calls in sick (or a manager calls the employee to verify the reason for leave), ask questions about the illness and need for leave.  Under the FMLA, the ADA, and the ADAAA, employers have the right to obtain information from employees about why they require leave.
Here are some questions to consider asking employees when they call in sick:

  • What is the reason for the absence?
  • What part of the job can the worker not perform?
  • Will they see a doctor for their illness?
  • Have they taken leave for this condition before?  If so, when?
  • When did the employee first know he or she would need to be absent from work?
  • When will they be able to return to work?

Holly8.  Formalize Your Process

checklistRequire employees to put their leave request, including sick leave request, in writing.  Employees must attest to the reason for the leave and that providing false or misleading information about an absence will result in disciplinary action, up to and including termination.  Once employees understand there will be a paper trail for leaves of absences (and consequences for dishonesty), they will be discouraged from taking leave they don’t need.

Holly7.  Ensure a FMLA Certification or ADA Accommodations Questionnaire Is Fully Completed
A medical certification form is an employer’s primary tool against FMLA abuse, so require employees to certify their FMLA qualifying absence.  Likewise, the ADA/ADAAA permits employers to obtain limited medical information necessary to support a request for accommodation.  This form is vital for assessing whether the employee is “disabled” and various reasonable accommodations.  The employer should insist the forms be fully completed, valid, and support the need for leave.  When a certification has entries missing or is vague or ambiguous, an employer must take action!

In some instances, an HR professional (or leave administrator or management official) may contact the health care provider to ensure that he or she actually prepared the certifications and to clarify the handwriting or meaning of a response.

Holly6.  Doubt the Employee or the Doctor?  Ask for a Second (and Third) Opinion

Employees who have reason to doubt the validity of an initial FMLA certification may ask for a second opinion.  Likewise, under the ADA/ADAAA, an employer may require a fit-for-duty examination if it is job-related and consistent with business necessity.

Holly5.  Check In Periodically

Keeping the lines of communication open can go a long way in preventing leave abuse.  Checking in on employees periodically to see how they’re doing is legal—as long as you don’t ask employees to do any work while they’re out and you don’t harass them about returning to work.

Holly4.  Request Recertification When Needed

The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave.  As a general rule, employers may request recertification no more than every 30 days and only in cases where the employee has actually been absent from work for the FMLAcovered  medical condition.  However, employers may request recertification in less than 30 days if:

  • The employee seeks to extend an existing FMLA leave;
  • Circumstances described in the previous certification have changed significantly;
  •  Information is received that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

Employers can also reevaluate an employee’s need for reasonable accommodations.

Holly3.    Control Scheduling Treatment and Consider Transfers

FMLA regulations require employees taking intermittent leave for treatment, therapy, or doctors’ visits to schedule those absences in a way that least disrupts the employer’s operation.  HR should communicate with the employee about the frequency of treatment, office hours of the health care provider, and ways the employee may be able to alter the schedule to reduce disruptions.

Likewise, if the need for intermittent leave is foreseeable, an employer may transfer the employee during the period of intermittent leave to an available alternative position for which the employee is qualified and better accommodates the reoccurrence of leave or allow an employee to work part time.

Holly2.    Fully Investigate Patterns of Intermittent Leave and Suspicious Circumstances


Where there is a specific pattern of leave, for instance when intermittent leave absences occur exclusively on Fridays and Mondays, employers can and should investigate whether the pattern is consistent with the medical certification and reasonable accommodation.  For instance, an employer can send a copy of the employee’s recent attendance record to the certifying physician to inquire whether the pattern of leave is consistent with the employee’s actual need for medical leave.

Likewise, when an employer receives information that casts doubt on the employee’s stated reason for the absence, this should prompt an investigation.  For instance, an employer may learn an employee on leave is engaging in activities while on leave that are inconsistent with the employee’s health condition.  The example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.  An employer who receives such information should not rush to judgment and immediately terminate the employee.  Instead, the employer should conduct a thoughtful, thorough, and complete investigation into the facts.

Holly1.  Update Your Policies and Procedures

Now is a good time to audit and update your policies and procedures, particularly your ADA policies and procedures to ensure they are in line and up to date.

GRINCHYou don’t have to be The Grinch to use these tips.  These tips won’t entirely eliminate the problem of employees trying to take advantage of leave—probably nothing can—but they will help.  If you’d like us to review your policies and procedures to help cut down abuse, give us a call.