Through an interactive process, our employee was granted intermittent leave as a reasonable accommodation for her anxiety and depression when they occur. The agreed-upon accommodation process requires that, when she takes leave when needed, according to her healthcare provider, she is to rest and perform no work. She followed the terms of the accommodation on several occasions over the past three years. However, over the past two months, she has repeatedly submitted hours worked during times she indicated she was on leave. We disciplined her for violating the agreed-upon, healthcare provider-approved accommodation procedures last week. She has now requested four weeks of non-intermittent leave, and as part of the interactive process, we immediately scheduled an online meeting with her and her healthcare provider to discuss the request. The problem is she refuses to participate, and instead just isn't coming to work.
The interactive process under the Americans with Disabilities Act (ADA) is a mutual process. It requires the participation of both the employer and the person seeking a reasonable accommodation. Should the employee withdraw from the process, an employer who seeks termination will likely be able to defend a claim of a denial of an accommodation request.
Work with your legal counsel to make sure you have properly documented the process and the employee's refusal to continue to participate, as well as any resulting decision you may make.
Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.
If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.
