Telecommuting as a Medical Accommodation (United States)

Response # 1: Don't be so sure that this is not a disability covered by the ADA Amendment's Act (ADAA). The old rule was that a disability had to last at least six months to be considered serious and covered by the ADA. But the new law expressly overruled Supreme Court interpretations that were deemed overly restrictive by Congress as to the intent of the legislation. An actual disability (as opposed to a merely "regarded as disabled" which still has the six month rule attached to it) can be of short duration. The analysis has to be whether the disability is a "substantially limiting" impairment regardless of length. In fact, the commentary indicates that while length of the disabling condition could be a factor, it is not always and is not a determining factor in itself.

 

The full intent of the law is to change the focus to whether the employee can fulfill the essential functions of the job with or without an accommodation. To be safe, that needs to be the focus of your analysis. Under the ADAA, the employee has to ask for the accommodation in some way, which she apparently has in your fact situation by asking to work from home.

 

A reasonable accommodation might involve working from home IF the employee can perform all of the essential functions of the job from home. You describe the position as executive assistant, which can mean a lot of things. I think you need to look at her actual job functions - and only the essential job functions that occupy the bulk of her time. If that means being present for meetings, being face-to-face with the executive several times throughout the day, answering phones because no one else is around to do it, etc., then you probably don't have to accommodate. But you need to make the analysis. Working less than 8 hours from home might also be a reasonable accommodation.

 

As the other part of your question, you cannot "make" someone take FMLA leave, but it is the employer's duty to determine whether or not leave that is taken is counted as FMLA leave. It is not up to the employee to decide whether it is an "FMLA leave". Either it is or it isn't, based on the facts. The employer makes the determination and must give notice to the employee that the leave is being counted as FMLA qualifying leave - whether or not the employee asks for it to be treated as such. Most often, of course, the employee does make the request because they want to protect their job, but once an employer has reasonable notice - whether or not requested by the employee - then the employer must make the analysis to determine whether the leave should count as FMLA leave, and must give notice to the employee of the determination that it is FMLA leave. Otherwise, you cannot count it against the 12 week FMLA allowance.

 

I think there is a common misconception that all short-term leave is only subject to the FMLA rules and not the ADAA, but that is simply not the case. The vast majority of medical leaves need to undergo both analyses if the employee is asking for a reasonable accommodation to continue working during the disability. (NOTE: The ADAA is different from the FMLA in that respect). If a reasonable accommodation under the ADAA is desired by the employee, s/he must ask for it in some manner, though she doesn't have to mention the term "ADA". Under the FMLA, once the employer gets notice of facts that a leave might be for an FMLA reason, then the employer has to make the investigation and decision whether to treat it as an FMLA qualifying leave - otherwise the leave will NOT count toward the 12 week allowance.

 

Be careful, by the way, in allowing it to look like you "trapped" the employee by trying to say that you did not have notice that the absence may be an FMLA qualifying reason so you didn't have to make the FMLA analysis and terminated the employee for being absent without approved leave. Courts and the Equal Employment Opportunity Commission bend over backward to find that the employer should have known that it was an FMLA qualifying reason and should have made the determination even though it was not requested by the employee.¹

 

Response # 2: Putting FMLA aside, an employer can generally deny an employee's request to work remotely so long as there is no discrimination or other unlawful intention or effect. The employee can take vacation time or sick leave (if available) in order to be paid for the absence from work, and the employer can and should treat the time off as FMLA leave and issue a notice to the employee. It is not required that you get a doctor's note certifying the medical basis for the leave, you can just take her word for it and process it as FMLA leave, which won't really come into play unless she has other leave time later in the year. You can't fire her for being absent, but that doesn't seem to be on anyone's mind.

Whether your executive will want to allow the work-from-home arrangement so that she doesn't have to take any time off and can get paid for the days without taking vacation . . . well, that's up to the executive and HR. The advice to him/her should be that if this employee is permitted to work from home in this situation, it may be difficult for the company to deny a similar request in the future for an employee who is perhaps less sympathetic, but who might be able to claim discriminatory treatment, so that is the risk of permitting the remote working arrangement. Otherwise, it's not really much of a legal issue.²

 

Response # 3: I would probably look at this from an ADA/telecommuting as an accommodation issue.

 

You might want to look at what the EEOC says about that: https://www.eeoc.gov/facts/telework.html³

 

Response # 4: I'd spring for an Uber (if her presence is necessary) and some work from home if her essential job duties can be done off-site. I'd offer reduced work hours if coming in full-time is taxing, but would limit work from home hours to essential tasks only, and ask that all non-essential work be performed in the office when she is able to return. Unless she was not a great performer - then I'd just indicate that it would be her responsibility to obtain alternative transportations on days she plans to come in and do any work and on other days, she is allowed _____ leave.⁴