As an HR person, you care about people, says attorney Susan Fentin. Your impulse is to help; however, if the problem is driving the business down, you may not be able to help. You need to balance these sometimes-competing interests, and that’s not often easy.
What are the issues when an employee is chronically ill? Typically, says Fentin, we see:
- Increased tardiness and fatigue, for example, with MS.
- Increased absenteeism, for example, on bad air days with asthma.
- Decreased concentration, for example, with migraines.
- Loss of productivity, for example, because the person is not present often enough to get the job done, or there is an increased error rate.
- Loss of motor coordination and/or control of bodily functions. (This is delicate, says Fentin.)
Fentin notes that there are issues for both the employee and the employer. (Fentin’s comments came at the Advanced Employment Issues Symposium, held recently in Las Vegas. She is a partner in the Springfield, Massachusetts, law firm, Skoler, Abbott & Presser P.C.)
Employee Issues
- Employees’ efforts to stay productive and employed for as long as possible
- Employees’ need for health insurance benefits as well as income
- Employees’ desire to keep your condition private
- Employees’ concerns about the stigma that attaches to some chronic conditions, for example, depression or bipolar disease
Employer Issues
- Employees who may abuse legal protections (“game the system”) or "run for cover."
- Disciplining employees with chronic conditions (there must be a legitimate need for discipline, and you must handle with care).
- Complying with reasonable accommodation requests. What’s reasonable can be a challenge, says Fentin.
- Coping with erratic absenteeism, such as that occasioned by asthma.
- Morale problems from the team because of unexplained "special treatment" for one team member.
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Chronic Illnesses and the ADAAA (Americans with Disabilities Act Amendments Act)
Employees with chronic conditions are specifically considered disabled under the ADAAA and applicable EEOC regulations, says Fentin.
Chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability, even if the symptoms or effects would substantially limit a major life activity only when active.
Examples of impairments that may be episodic include epilepsy, hypertension. asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia.
An impairment, such as cancer that is in remission but that may possibly return in a substantially limiting form, will also be a disability under the ADAAA and the final regulations, Fentin adds.
Employers’ Obligations Under the ADAAA
- No discrimination in decisions related to employment
- Reasonable accommodation, including interactive dialog
Discrimination includes association discrimination, says Fentin. For example, say an employee’s husband has cancer, and the employer, concerned that the employee will be preoccupied, decides not to give the employee a special assignment that she otherwise would have gotten. That’s association discrimination, says Fentin.
In addition, be wary of qualifications that have discriminatory impact, for example, “100% healed” rules. Those are a direct violation.
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Employers’ Obligations Under the FMLA
- No retaliation or interference.
- Maintain employee’s health insurance benefits with same employer contribution.
- Restore to the same or a substantially similar position at the end of the leave.
Again, chronic conditions are specifically listed as examples of serious health conditions. Although serious health conditions generally involve more than 3 days incapacity, no specific amount of incapacity is required if the condition is chronic, says Fentin. That is, chronic conditions may cause episodic rather than continuing periods of incapacity of more than 3 days.
Chronic conditions do require:
- Periodic visits to a healthcare provider (at least twice a year, says Fentin).
- That they continue over an extended period of time.
In tomorrow’s Advisor, more on meeting the challenge of balancing compassion with business, plus an introduction to the wage/hour self-audit guide that helps you find problems before the feds do.