Compensation

Accommodating Chronic Conditions—Frustrating and Annoying, But You Have No Choice

What Is a Chronic Condition?

What is a “Chronic Condition” for purposes of leaves, accommodations, and performance management? Eyres says that it is a disease or disorder:

  • Of slow progression and long duration;
  • That causes continuous or episodic periods of incapacity;
  • Lasting at least one year but usually a lifetime; and
  • That often involves episodic complications from treatments or medications. (Under the ADA and FMLA, these may give rise to a separate limitation of a major life activity.)

Eyres, who is managing partner of Eyres Law Group, LLP, offered her tips at a recent BLR-sponsored webinar.

Examples of Chronic Conditions That Are Likely Disabilities

Some of these items listed below are diagnostic terms, notes Eyres, and it is not appropriate for the manager to know the diagnosis. The manager’s interest is functional capacity, functional limitations, and work restrictions. These items are listed to show the range of problems that may be disabilities, says Eyres.

  • Respiratory problems (such as asthma or COPD)
  • Inflammatory joint conditions (such as rheumatoid arthritis, fibromyalgia, or lupus)
  • Chronic fatigue, chronic pain, chronic migraines (often episodic)
  • Cognitive or neurological deficits (often from long-term usage of prescribed medications)
  • Seizure disorders (epilepsy or medication complications)
  • Peripheral neuropathy (often a side effect of medications taken for a long time for chronic conditions)
  • Immune deficiencies or susceptibility to infections
  • Digestive or gastric inflammation (such as colitis or severe acid reflux)
  • Diabetes or hypoglycemia
  • Incontinence or chronic bladder infections
  • Irritable bowel syndrome
  • Multiple chemical sensitivities to smells or common products
  • Sensitivities to noise, distractions, or temperature fluctuations (physical or emotional)
  • Allergies to food products or other items (peanuts, latex, etc.)
  • Hypertension (high blood pressure)
  • Depression, PTSD, or anxiety disorders (panic attacks or phobias)
  • Severe mental conditions treated with medication (bipolar or schizophrenia)
  • Intellectual (or “special education”) disabilities

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Intermittent Leave Is Most Common with Episodic or Chronic Conditions

Eyres offers the following tips regarding intermittent leave in these situations:

  • Employers are required to grant intermittent or reduced schedule leave when it is medically necessary for an employee’s own serious health condition (includes rest, treatment, and recuperation).
  • The serious health condition does not necessarily require active treatment for leave to be medically necessary.
  • The employee does not have to go back to his or her provider for every flare-up. Employees often have a protocol and know exactly what to do, for example, with asthma, allergy, and diabetes.
  • If you have a rule that says that after a certain number of days out you need a doctor’s note, you cannot apply that rule in this situation—you have to make an exception.
  • There is no undue hardship defense. Even though this is annoying, and frequently unpredictable, eligible employees must be granted an intermittent or reduced schedule, as certified by their healthcare provider. (Make sure your supervisors and managers know this and know not to retaliate.)
  • Employees with episodic or chronic conditions often need the FMLA for multiple consecutive years.
  • Employers may require that absence be scheduled to minimize disruption (subject to approval of the healthcare professional).

Can’t Force Unnecessary Leave

It’s important for frontline managers and supervisors to understand that employers cannot force employees to use leave unnecessarily or prematurely when reasonable accommodations or intermittent leave are possible, says Eyres.

Managers are usually trying to be good managers and trying to be sympathetic when they say, “Why don’t you just take as much time as you need,” but what they are really asking is to take leave in a block.

If the employee can work intermittently, the employer cannot mandate that the leave be taken in a block of time (paid or unpaid). In addition, the employer:

  • May not mandate that leave begin sooner than the employee’s healthcare provider specifies, nor extend beyond the provider’s release to return to work;
  • May not mandate that the employee use FMLA leave for multiple consecutive days of sick leave unless it qualifies as a ‘serious health condition’;
  • May not mandate that the employee use FMLA leave as part of a “light duty” or “modified duty” assignment under the workers’ compensation program; and
  • May not require use of a job-protected leave day if it would have been a nonduty day for the employee had he or she not been on leave. (Consider furlough day issues.)

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Final tip for frontline leaders—don’t start with any assumption about the disability or assumption that the disability is causing performance problems. Start with the performance. Let the employee bring up the disability if he or she chooses to do so.

In tomorrow’s Advisor, how continuous performance management is your best defense against employees who are gaming the system, plus an introduction to the new resource, FMLA Compliance Complete.