ADA nightmare

[Valentine141]

What is the name of your state? Colorado
My Administrative Assistant has just checked herself into a psychiatric facility for yet another long-term stay. She has spent almost 1/2 of the past 3 1/2 years locked up for depression and suicide attempts. She says that the job is too stressful for her, but won't quit. I can't convince my HR manager to agree to a termination because some mental or emotional problems are covered by FMLA and, in some cases, ADA. It was my understanding that ADA covers individuals, provided they are able to fulfill their job duties. In this case, she clearly is not -- every stressful period (and every job has one) ends up with her being either voluntarily or involuntarily committed. Is there a way out of this? Please help!

 

[I AM ALWAYS LIABLE]

What is the name of your state? Colorado
My Administrative Assistant has just checked herself into a psychiatric facility for yet another long-term stay. She has spent almost 1/2 of the past 3 1/2 years locked up for depression and suicide attempts. She says that the job is too stressful for her, but won't quit. I can't convince my HR manager to agree to a termination because some mental or emotional problems are covered by FMLA and, in some cases, ADA. It was my understanding that ADA covers individuals, provided they are able to fulfill their job duties. In this case, she clearly is not -- every stressful period (and every job has one) ends up with her being either voluntarily or involuntarily committed. Is there a way out of this? Please help!

My response:

Since HR won't do anything about it, then I'll answer your question thusly: Quit.

IAAL

 

[Beth3]

Your admin is only entitled to 12 weeks of medical leave per rolling 12 month period or per calendar year (depending on how your company has elected to track it.) That assumes she's also worked at least 1,250 hours in the 12 month period prior to taking leave. If she's been gone as much as you say, then she has taken far more leave time than the company was obligated to extend and may not even qualify for leave given the amount of time she's been gone (i.e. hasn't worked enough hours.)

The ADA does require an employer to consider and potentially implement "reasonable accommodations" but the ADA doesn't dictate leave must be extended at all, although brief amounts of leave time could potentially be a reasonable accommodation.

I'm in HR and it certainly sounds to me like your HR manager may not understand the boundaries of the relevant laws and what the company does and doesn't have to do. (Or does and just is afraid to take action.) If your HR Manager won't budge, then get your boss on board and insist that the three of you consult with an employment law attorney to get an expert opinion on the situation so you can make a plan to replace her.

 

[Valentine141]

Beth3: Thanks very much for your response. You are correct in that my AA time away from the office goes well outside of the time provided by FMLA. I think that HR is afraid of terminating because of an established medical condition. I will make an effort to bring my boss on board, along with one of our attorneys to help convince the HR manager that she will not be breaking (or even bending) the law.

 

[cbg]

There is a widespread belief that an employee cannot be terminated for any reason that even remotely connects to medical. This is simply not true. Once the employee has used up whatever state or Federally mandated leave time they may be eligible, or if they are not eligible for any, the employer is free to terminate regardless of whether or not they are out on medical leave or under a doctor's care.

IF the condition qualifies under the ADA AND IF a SHORT leave would allow them to accomplish the essential functions of the position, then the employer might want to consider offering that leave. But the ADA does NOT require that you provide leave, and does NOT under any circumstances require unlimited leave.