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1. FEATURE STORY:
PUNCTUALITY IS IMPORTANT, BUT IS IT ESSENTIAL?

Punctuality is an important workplace policy that employers regularly enforce. Your company may overlook an employee showing up late a minute or two, as long as it doesn't become a habit. But for some employees, lateness is a habit. If that perpetually-late employee has a disability, is it fair to hold him/her to the rule the same as employees without disabilities? The Americans with Disabilities Act (ADA) says it might not be fair. Your company should not assume it is safe from ADA liability because it treats employees with disabilities the same as other employees.

A qualified employee with a disability is an individual who can perform the essential functions of the job with or without reasonable accommodation. You're required to provide a reasonable accommodation if it allows the employee to perform the essential functions of his/her job, unless it imposes an undue hardship (i.e., significant difficulty or expense) on your company's operations. So basically, the ADA's reasonable accommodation provision requires you to actually treat employees with disabilities differently in some circumstances.

What is a reasonable accommodation for an employee with a disability who can't meet a punctuality requirement? That depends on whether punctuality is considered an essential function of his/her job. Typically, to determine whether punctuality is an essential function, look at whether other employees depend on that employee's presence to complete work, whether the employee's lateness causes production to significantly decrease or any other detriment to the business, and whether the employee completes his/her work on time.

Punctuality Is Essential

If you determine that, in fact, punctuality is essential for all employees regardless of disability, you're not done. Next, you must engage in the interactive process with the employee because he/she needs to provide you with relevant details about his/her limitations and abilities in order for you to determine possible accommodations.

Consider: What is causing the employee to be late? For example, if the employee uses a wheelchair, is there adequate handicapped parking at the facility? How long does it take for the employee to get from his/her vehicle to the building entrance? To his/her workspace? Much as the employee might try, it might be out of his/her control to be on time according to policy requirements without some type of accommodation.

Employees with disabilities may be entitled to a closer parking space, a first-floor workspace, or other reasonable accommodations when punctuality is an essential function. For example, at one employer, cubicles were unassigned so employees took the first empty cubicle they could find as they reported to work. An employee who used a wheelchair could not see over the tops of the cubicles so he had to navigate through the rows until he found an empty one, which often caused him to be a few minutes late. A possible accommodation for that employee is an assigned cubicle in order to allow him to meet punctuality requirements.

Punctuality Is Not Essential

You may instead determine that punctuality is not an essential function of the employee's job. Then another reasonable accommodation could be a schedule modification, which is generally not appropriate when punctuality is essential. The ADA even says that reasonable accommodation may include modified work schedules.

For the previously mentioned employee who used a wheelchair (but not necessarily limited to employees with wheelchairs), a possible accommodation is a grace period for reporting to work and returning from breaks. Giving the employee an additional 15 minutes would simply create a different time requirement for the employee to arrive to work and to return from a break. It would not create an open-ended schedule where the employee could come and go as he/she pleases. It would instead help the employee overcome his/her lateness problem.

Exploring possible accommodations, such as a punctuality policy exception, for an employee with a disability where he/she uses a wheelchair or other mobility device is somewhat easier because the disability is obvious. Some disabilities are not obvious, though. For example, which psychiatric or mental conditions are considered disabilities? What types of accommodations may an employee with a less obvious disability need? For complete information on what the ADA requires, and case examples to illustrate other employers' right and wrong ADA moves, check out The Complete Compliance Guide To Federal And State Employment Law.

2. CATHIE'S CORNER:
ADA, FMLA, STD, LTD:
ALPHABET SOUP CONFUSES EMPLOYEES

If there is one issue that employees misunderstand, it is the interplay of the Family and Medical Leave Act (FMLA), short- and long-term disability benefits (STD/LTD), and the Americans with Disabilities Act (ADA). The FMLA, ADA, and STD/LTD provide independent rights to employees with medical conditions, but many individuals get them confused and wind up believing they have greater rights than they actually do.

For example, since the FMLA offers job protection to those with serious health conditions and since the ADA prohibits discrimination on the basis of disability, an amazing number of people mistakenly believe that if you are collecting disability benefits, your job is protected indefinitely and without any limitations whatsoever.

Obviously, this is not true. But this is firmly entrenched in public perception, nonetheless. So here is some handy information you can use to explain to your employees the intent and limits of each.

The intent of the FMLA is to provide some job protection to those who must miss work due to a serious health condition, either their own or that of a qualified family member. It is unpaid leave. It lasts for a total of 12 weeks, and can be taken intermittently or in blocks. The employer cannot choose whether or not to apply it if the eligibility criteria are met. The FMLA offers job protection for attendance issues related to the qualified illness; it is not a blanket protection for any and all illnesses. If the employee would have been fired, demoted, or transferred regardless of whether they took leave, the FMLA will not prevent the employer from doing so.

The intent of short- and long-term disability benefits is to provide some income replacement while on medical leave. STD/LTD are not leave; they are how you get paid while you are on leave. They run independently of whether or not FMLA applies and have different eligibility criteria. Collecting STD or LTD benefits does not provide any job protection. If the employee is on FMLA leave, the FMLA provides job protection — collecting disability benefits does not.

Then there's the ADA. The intent of the ADA is to provide a level playing field for those with permanent or long-lasting disabilities that substantially limit a major life activity. I think the thing employees have the hardest time understanding is that "disabled" for purposes of the ADA is not the same as "disabled" for purposes of STD and LTD policies.

The ADA is not a leave law, per se, and does not require an employer to provide leave. However, if a short leave would allow the employee to return to work and assume the essential functions of their position, then it may be a reasonable accommodation to provide the time off. An indefinite leave of absence is not considered reasonable.

Since both the eligibility requirements and the intent of the FMLA and the ADA are different, it is possible for the FMLA to apply, but not the ADA, and vice versa. Someone with a temporary medical condition, e.g., a broken leg, pregnancy, or pneumonia, may qualify for FMLA leave without having a qualifying disability under the ADA. Someone with one leg or who is legally blind may qualify for the ADA without qualifying for FMLA leave (at least, for the named conditions!). But someone with asthma or another chronic condition may qualify for both.

Suppose you have an employee who meets both sets of eligibility requirements and for whom a reasonable accommodation for ADA purposes has been determined to be a flexible schedule. If they are still able to work a full day, say 10-6 instead of 9-5, the FMLA would not come into play. But if one day they are not able to come in until noon because of a complication of their medical condition, that could be an appropriate use of two hours of FMLA leave.

Keep in mind that the employee has responsibilities also. Neither the ADA nor the FMLA gives employees unlimited protections. An employee who qualifies for FMLA leave is still expected to be at work when their medical condition permits. An employee who qualifies for the ADA is still expected, with or without a reasonable accommodation, to perform the essential functions of their position. They do not get a free pass for unlimited absences or tardies, or for substandard work.

Obviously, the laws are far more complex than I have mentioned here. From an HR standpoint, there are an infinite number of exceptions, complications, or anomalies to the above that may arise. I'm not attempting in this short space to fully address the various possibilities; only to provide you with some points that may be helpful in trying to explain the basics to your employees.

Good luck!

Catherine Bannon is the President of HR by Request, Inc., in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

PROTECTING EMPLOYEES FROM WORKPLACE VIOLENCE

Unfortunately, it takes an incident like the shootings at Virginia Tech for employers to seek information about securing their workplaces. But then many abandon their efforts a few weeks later as the media attention dies down. It's imperative that employers...View the full story on our website.

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