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Is that employee really disabled? Making the ADA call requires careful analysis

by on
in Employment Law,Human Resources

Just because an employee takes FMLA leave to deal with a serious health condition doesn’t mean he’s disabled under the ADA—and therefore entitled to reasonable accommodations when he returns to work.

Employers must consider each em­­ployee’s situation individually. Only workers with physical or mental im­­pairments that substantially limit one or more major life activities generally qualify for ADA accommodations.

Advice: Before jumping to the conclusion that a returning employee is entitled to whatever accommodation he requests, ask yourself whether he is, in fact, disabled. What counts is his condition at the time he requests the accommodation.

Look at a range of life activities like working, breathing, walking, thinking, sleeping and socializing. Then try to determine whether the claimed problems are outside the wide range of “normal” for most people in the general population.

Recent case: John Bialko worked as a forklift operator at a Stokely-Van Camp facility. He was first diagnosed with panic and generalized anxiety disorders in 2002.

Bialko left the plant one day via ambulance after suffering a severe panic attack that rendered him unable to stand and made his heart race. He ended up taking FMLA and other leave. Then his doctor certified that he was ready to come back to work as long as he didn’t work more than 40 hours per week. According to his doctors, working longer hours might induce anxiety.

The company took the certification as a request for reasonable accommodations, but turned it down. It reasoned that merely being unable to work overtime did not make Bialko disabled. Bialko sued, alleging he was in fact disabled.

A lower court rejected his claim and he appealed. The 3rd Circuit Court of Appeals agreed with the lower court that Bialko could not claim he was disabled merely because he was limited to 40-hour workweeks.

It carefully analyzed whether Bialko was substantially limited on one or more major life activities. He was not when it came to the major life activity of working because he could do many jobs that don’t require overtime.

Bialko tried to tell the court he also was limited in his ability to socialize. His wife testified that Bialko really didn’t like to leave the house by himself and didn’t want to socialize in large groups. The court said that hardly described someone outside normal ranges of social behavior. It dismissed his appeal. (Bialko v. The Quaker Oats Company, et al., No. 10-2273, 3rd Cir., 2011)

Final note: Don’t forget that New Jersey has its own disability law. In some aspects it is broader than the ADA.

Run your disability concerns by your attorney before rejecting a reasonable accommodations request. If you do decide to make an accommodation, remember that it can be on your terms. The choice of accommodations is up to the employer.

Finally, remember that if an em­­ployee has used up available FMLA or other family leave, he may still be eligible for more time off as a reasonable accommodation if it is clear he has a disability and more time off could allow an eventual return to work.

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