Jorge has a workers’ compensation claim, has exhausted FMLA and continues to extend ADA leave, WHAT’S NEXT? Can we deny ADA?

Question:

Jorge recently obtained medical attention for an on-the-job wrist injury and filed a workers’ compensation claim. FMLA has since exhausted and the employee has been on leave as an accommodation under the ADA. Jorge has been turning in medical certificates indicating a return to work date within 30 days of the date of the current medical appointment and instead of returning to work on the indicated date, then Jorge brings in another note for 30 more days of leave.  This has happened several times.  Multiple curing notices have been sent to get the health care provider to get an actual anticipated return to work date and according to Jorge, the doctor refuses to provide an estimated RTW date that is valid, a common occurrence with work comp cases..

Answer:

Let’s start by clarifying, the employee should be solely responsible at all times to provide ongoing medical certification regarding the need for leave.  We suggest that HR does not contact the medical provider or send a letter to the medical provider directly.  Instead, discuss with Jorge his responsibility to provide you a valid return to work date, so you are able to determine if you can provide him with a reasonable accommodation (if the duration of leave is not an undue hardship for his current or any other job he is qualified for).  This is a very specific and distinct difference from FMLA leave.  Under the ADA you are not required to accommodate unreliable, unreasonable absences and you can expect a reasonable return to work date – a new doctor’s note every 30 days with an extended leave is not reasonable. The other option is to facilitate “curing” or to assist the employee in getting a second opinion, if the medical provider is not able or willing to confirm the length of leave.  In an Integrated Medical Leave and Accommodation Management System™, it is important to establish clear Standard Operating Procedures for responding to these types of challenges.  Show good faith, assist the employee in understanding how to provide you the data you need to determine if they are a Qualified Individual with a Disability.

Do you have a full understanding of the six stages of ADA Designation that lead you through the Interactive Process, around the Undue Hardship Analysis and concluding with a Qualified Individual with a Disability determination and confirmation they are able to perform the job functions with the agreed upon accommodation? Each stage is critical in determining what accommodations you can reasonably provide the employee and helps you fine tune your HR Standard Operating Procedures for assisting disabled employees, whether related to a workers’ compensation injury or not? 

Leave Management Solutions’ ADA Accommodation Compliance Blueprint, for either CA/USA and USA, is  designed to help you navigate the ADA Good Faith Interactive Process, get clarification on how the employees’ disability impacts their ability to perform all the Essential Job Functions (the Undue Hardship Analysisl), implement the accommodation, and as importantly — how you follow up to verify performance requirements are being met, as well as how to address non-compliance with accommodation guidelines, related performance management issues, safety concerns and the response requirements when an employee indicates they are experiencing harassment, retaliation or discrimination as a result of the ADA Accommodation request.  Purchase the on-demand package at a discount or individual Skill Building courses (all courses include one free monthly Q & A Meeting).

Become familiar with a comprehensive, strategically developed, ADA Good Faith Interactive Process with Beth De Lima, MBA, SPHR-CA, SHRM-SCP, an HR & Vocational Rehabilitation specialist and HR Expert Witness with more than 28 years of complex medical leave/accommodation expertise.

These courses were created by HR, for HR. 

 https://www.leavemanagementsolutions.com/triad-ii-a-usa-ada-accommodation-compliance-blueprintusa/