ADA & Disabilities, Leave Management, Policy, and Compliance

Ask the Expert: Deeming Employee ‘Ineligible’ for Leave Isn’t Always Simple

Question: We have an employee who requested FMLA paperwork because of her migraines.  Unfortunately, she is ineligible because her location is outside of the 75-mile radius of 50 employees or more. She is requesting special accommodations to miss work when she has a severe migraine. However, she is a kitchen designer and most of the time she is scheduled to open the showroom by herself, so attendance is an essential duty of her job.  Are there any risks to denying her request?

FMLA

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Answer from the experts at HR.BLR.com:

Thank you for your inquiry. Although the employee is not eligible for a leave of absence under the Family and Medical Leave Act (FMLA), you should consider whether she is entitled to an accommodation under the Americans with Disabilities Act (ADA) before denying her request.

Employees are eligible for a leave of absence under the FMLA if they (1) have worked for the employer for at least 12 months (not necessarily consecutively); (2) have worked for the employer for at least 1,250 hours in the previous 12 months; and (3) work at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees.

Since the employee works at a worksite that is outside of the specified radius, she is not eligible for FMLA leave. Accordingly, since she has requested FMLA leave, you must notify the employee within five business days, absent extenuating circumstances, either orally or in writing, that she is not eligible to take FMLA leave. The eligibility notice should state that the employee is not eligible for FMLA leave and provide at least one reason why the employee is not eligible (such as explaining that the employee works at a worksite that has fewer than 50 employees and is not within 75 miles of other employer worksites).

Even though the employee is not eligible for FMLA leave, she may be entitled to an accommodation under the ADA, including a leave of absence or modified work schedule, if her migraines are serious enough to be considered a disability. The ADA, which applies to employers with 15 or more employees, requires employers to provide reasonable accommodation to a qualified individual with a disability, unless doing so would impose an undue hardship on the operation of the employer’s business. The law does not have eligibility requirements like the FMLA other than the employee is disabled.

The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. Chronic neurological impairments such as migraines can be disabilities under the ADA if the employee is substantially limited in a major life activity by the migraines.

Major life activities include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working, among other things. You can require that the employee provide medical certification that her migraines are a disability under the ADA and that she needs an accommodation.

If the employee can provide medical certification that her migraines are a disability, then you should determine whether your organization can provide an accommodation that would allow her to perform the essential functions of her job without causing undue hardship to your organization. Accommodations can include, among other things, modifying the employee’s work schedule and a leave of absence to allow her to seek treatment or to recuperate from the effects of her chronic condition.

So, for example, an accommodation for the employee with migraines could be to allow her to miss work because of a migraine or to come to work later in the day after a migraine has subsided.

However, you do not have to provide an accommodation that causes undue hardship to your organization. To meet the undue hardship standard, you must be able to show that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.

So, for example, if no one else is available to open the showroom with little or no notice because she is the only employee within 50 miles, then that fact could support a showing of undue hardship. However, if other employees are available who could open the showroom, or if the showroom could be opened later in the day without too much inconvenience to customers, then allowing the employee to take the time off may not be an undue hardship to the organization.

Note, too, that according to the Equal Employment Opportunity Commission (EEOC), if providing a particular accommodation would be an undue hardship, you should try to identify another accommodation that will not pose such a hardship. For example, transfer to a vacant position where the employee’s migraines could be better accommodated by a leave or modified work schedule should be considered.

The EEOC provides helpful guidance on reasonable accommodation and discusses leave and modified work schedules: Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Because of the complex issues involved in evaluating whether an individual is disabled and entitled to an accommodation under the ADA, you should consult with an attorney on this matter before taking action.