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Worker Hands Employer Tough FMLA, ADA Case

(Updated Dec. 30, 2009)

Q. We have an employee who works as an administrative assistant. She was recently in a car accident and injured her arm, hand, and wrist. Her main job duty is to transcribe documents. That often requires her to type for hours at a time. She also is responsible for taking handwritten notes during meetings. As a result of her injury, she has had to take Family and Medical Leave Act (FMLA) leave until she can regain her strength and return to do her job.

We have since received word from her doctor that she is ready to come back to work but with some conditions on how much she can type and write. The doctor imposed the following restrictions: (1) continuous keyboard use limited to 30 minutes per day, (2) continuous writing limited to five minutes per day, (3) intermittent keyboard use limited to 60 minutes per day, and (4) intermittent writing limited to 60 minutes per day.

Since the functions that the doctor has placed severe restrictions on represent roughly 95 percent of our assistant’s work, he has effectively reduced her ability to work to about an hour or two a day. That simply doesn’t work for us. I’m concerned about what to do now. If we fire her, it would be because her medical condition doesn’t allow her to do the job she was hired to do. If we do that, are we violating the Americans with Disabilities Act (ADA)?

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA and ADA

A This is the exact type of scenario that drives employers crazy. On the one hand, you have to determine whether she is so disabled that she can’t perform the essential functions of her job with or without a reasonable accommodation. On the other hand, you have to determine whether she is disabled enough to be substantially limited in one or more major life activities. With the Amendments to the ADA that took effect on January 1, 2009, you should be very careful in making the determination that the alleged disability isn’t enough of a disability to be covered under the ADA. That was exactly what prompted the amendments in the first place, and you should probably err on the side of caution.

Nevertheless, in analyzing this situation, the first question you should ask is, “Does she have an impairment that substantially limits her in one or more major life activities?” There are actually three parts to that question that you need to address:

  1. Does she have a medical condition that can be considered an impairment?
  2. Is there a major life activity involved?
  3. Is she substantially limited in the major life activity?

Because the courts have pretty much made any medical condition or abnormality an impairment, she easily meets the first requirement.

Americans with Disablities (ADA) Compliance Manual

Before the ADA Amendments Act (ADAAA) took effect, if she had tried to rely on the ability to continuously type or write as a major life activity, she would have lost. Courts that considered the issue held that typing and similar activities weren’t central to everyday life and therefore weren’t major life activities. Under the new ADAAA, I’m not entirely confident those courts would come out the same way. In addition, courts have universally recognized working as a major life activity, so you need to address whether she is substantially limited in that respect anyway.

The safest way to proceed would be to enter into the interactive process and find out if she can perform the essential functions of the job with an accommodation, including additional time off beyond the FMLA time that she has exhausted. If there is a reasonable accommodation, you need to do it. However, if there is nothing that can be done to help her do the job, including additional time off (i.e., the doctor says this is a permanent or very long-term problem she is going to have), then you’ve got nothing left to do except to offer her another available position.

FMLA Compliance Manual

Assuming her restrictions are permanent (or at least long-term), I don’t see how she can do the job for which she was hired. In that case, you will have exhausted all that is required of you under the ADAAA.

As you can see, ADA situations require a fairly subjective analysis. Thus, you should seek counsel from your employment attorney before taking action against an employee who might have ADA rights.