Example of Potential Compliance Issues under ADA and FMLA

An employee with a known psychiatric disability was hospitalized for two suicide attempts, which occurred within several weeks of each other. Under FMLA, the employee is entitled to up to 12 weeks leave for treatment and recovery. When the employee asked to return to work, the employer allowed him to return pending an evaluation of medical reports to determine his ability to safely perform his job. The individual's therapist and psychiatrist both submitted documentation stating that he could safely perform all of his job functions. Moreover, the employee performed his job safely after his return without reasonable accommodation. The employer, however, terminated the individual's employment after evaluating the doctor's and therapist's reports, without citing any contradictory medical or factual evidence concerning the employee's recovery. Under ADA, employees with known psychiatric disabilities cannot be terminated if they are able to perform their jobs. Without more evidence to the contrary, this employer cannot legally support his action. (BNA, Policy & Practice Series, 1996-1999)

In addition, to the overall prohibition against discrimination, the ADA lists the following as discriminatory and illegal:²⁵

* limiting, segregating, or classifying a job applicant or employee based upon a disability that in any way adversely affects the employment opportunities or status of the individual;

* entering into contracts or other arrangements with third parties which have the effect of subjecting an employer's workers to discrimination based upon disability;

* utilizing any standards, criteria, or administrative methods which have the effect of discriminating based upon disability or which perpetuate the discrimination of others;

* excluding or otherwise discriminating against a job applicant or employee because of that person's association with a person who is disabled or a disability-based group;

* not making reasonable accommodation for the known disabilities of job applicants and employees.

WHAT IS NOT COVERED UNDER THE ADA.²⁶

 

^{The following are not required under the ADA:}

* preferential treatment of job applicants or employees with disabilities;

* expensive accommodations or modifications of current workplace;*

* new recordkeeping or governmental reporting regulations;

* hiring or retention of unqualified individuals or providing an excuse for poorly performing or disruptive employees.

* The ADA requires, however, that employers make reasonable accommodations to the known physical or mental impairments of an otherwise qualified job applicant or employee who is disabled, unless the employer can prove the accommodation would create an undue hardship on the business. The concept of reasonable accommodations is key to the ADA.