Emma's Disability is Hurting Performance: Can We Fire Her?

Dear Rita:

Emma has worked as a case manager for our nonprofit for over 15 years. Lately, she has outbursts with clients and coworkers and she's way behind on her paperwork. We designed a Performance Improvement Plan. A couple of weeks later she informed us that she has migraine headaches and depression since her mother died. She gave us a doctor's note stating that she needed to transfer to a less stressful job, in essence a request for an accommodation. Fortunately, we had an administrative assistant position vacant and we were able to accommodate her request. Emma's performance in that job was less than satisfactory and she took a 3-month leave of absence under the Family Medical Leave Act (FMLA). At the expiration of her FMLA leave, Emma returned to her old case management job. During her absence, all case manager jobs were restructured and Emma now has to travel further to visit clients and fill out additional paperwork. She is missing a lot of work time, stating that her migraine headaches have become worse and that she never knows when they will flare up. Emma has exhausted her FMLA leave and there is no other vacant position to transfer her into. Are migraines a disability? We want to fire her for poor attendance . . . but can we do that? -- Pulling My Hair Out!

Dear "Hairless,"

The American with Disabilities Act (ADA) applies to employers with 15 or more employees. Since Emma qualified for FMLA, I assume that you have at least 50 employees, which is the minimum workforce size under which the law applies.

Both migraine headaches and depression are covered under the ADA. Under the ADA, a disability is a physical or mental condition that substantially limits a major life activity. The new ADA regulations (effective January 2010) broadened the definition of "major life activity" to include breathing, learning, reading, concentrating, thinking, communicating and working. An employer is required to make reasonable accommodations for the limitations that stem from the disability (not for the disability itself). Emma's limitations are that she cannot regularly attend work due to migraine headaches which she claims are caused by the stress of the job.

Generally, a disabled employee must make a request for an accommodation. Employers are not required to be clairvoyant. Emma has not mentioned the word "disability" nor has she requested an accommodation under the ADA. However, knowledge of a disability can be imputed to the employer when the fact of the disability is the only reasonable interpretation of the facts. And either the FMLA request or a Workers' Comp claim can act as notice of an employee's disability. Under these facts, it can be implied that Emma is requesting intermittent leave to accommodate the limitation (her inability to work) that springs from her migraine headaches.

As an employer on notice of Emma's disability, you should initiate the "interactive process" to see if there are any reasonable accommodations you can make so that Emma can perform the essential functions of her job. The interactive process is what the ADA labels the dialog between the employer and employee to determine Emma's limitations and needs. (By the way, the interactive process obligation exists for the entirety of a disabled person's employment. Whenever a disabled employee is not successful in his or her job, the employer should reach out to the employee to discuss the potential of accommodations to facilitate successful performance.)

Step 1: Medical Certification

In this case, the first step in the interactive process is to obtain medical documentation of Emma's disability which requires intermittent leave as an accommodation. Give Emma a medical certification form for a medical professional to fill out to

  • Document her medical condition and
  • Specify requested accommodations.

If Emma refuses to give the form to a medical professional or if the medical professional states that no accommodations are required, then you can terminate Emma's employment for excessive absences.

If the medical professional states that Emma will require unscheduled intermittent leave, you should determine if that limitation poses an undue hardship on your operations. Start off by reviewing the employee's job description. If you have done your homework, the job description will include a requirement that the employee must be able to cope with stressful situations and to interact cordially with coworkers to accomplish tasks. It doesn't seem reasonable that you can hire a substitute case manager to fill in for Emma's unscheduled intermittent absences.

Step 2: Ask the question: Can coworkers fill in on a "moment's notice" for Emma?

Be specific; for example, a case manager establishes relationships with clients, determines their needs, finds services and helps them get those services. A client needing food stamps will be left hungry if the case manager can't follow through due to repeated unscheduled absences. In short, if Emma cannot perform the essential functions of her job with excessive absenteeism, and you cannot fill in with other staff on a moment's notice, you can find that Emma's requested accommodation of intermittent leave poses an undue hardship to the organization, and terminate her employment.

Make sure you have also checked your state disability discrimination laws. State laws vary in the workforce size for which they are applicable and how they protect individuals with disabilities.

Examples of variations among states include:

And each state law has some areas that differ from federal law. For instance, the ADA requires that a disability "substantially limit" a major life activity, while the California FEHA requires only that the disability "limit" a major life activity, resulting in broader coverage under state law than under federal law.

Hopefully, getting a handle on this highly regulated and complex body of laws will help your hair situation. What it all means is that, before firing an employee for excessive absences or with a known disability, consult a labor law professional to guide you through the federal and state laws to avoid a claim of disability discrimination.

Pamela Fyfe is an HR attorney with the Nonprofit Insurance Alliance Group, where she counsels member nonprofits on wrongful termination, employment law and other matters to help keep them out of court.

See also in Blue Avocado:

Comments (4)

  • Although I am not an attorney, I work with individuals that have disabilities and employers on issues related to recruiting, hiring and retaining qualified individuals with disabilities in the workplace. First, I say kuddos to you for trying to work with your employee. There is a resource, the Job Accommodation Network http://askjan.org/, which can help you discern a disability-related issue from a performance issue. Good Luck! Jackie

    Nov 16, 2010
  • Fine article. Employers that have a clear and well written job description signed by the employee at the time of hire will be in a much stronger position if a disability issue ever arises. And a qualified employment law attorney should be consulted at the moment you sniff a disability issue -- not the day the complaint arrives in the mail. Document all communication with the employee contemporaneously and require an employee signature on all performance evaluations. Above all, ask the employee what he or she needs and document al communication.

    I speak from experience as a visually impaired employee terminated in the guise of poor productivity. I took employer silence as indication that limited assistance from a fully sighted employee was a reasonable accommodation and failed to suggest a possible technological solution that I had become aware of that would have enabled me to resume working independently. And when business took a downturn, guess who got the ax? It was a long, expensive, and painful process for both sides.

    Nov 16, 2010
  • Anonymous

    what about a museum w 700 volunteers? what happens if vol can no longer do job due to disability,often age related,i.e.,endurance, time standing?

    Nov 16, 2010
  • Anonymous

    I work for big retail company and suffer chronic migraines. I have been under Doctors care for past 14 years that i can prove and have tried numerous types of Medicines and now receiving injections. 34 at time every three months. I have exhausted All FMLA hours aloud but that doesn't make the migraines stop. I have read that migraines are considered a disability now under ADA. My employer or one of its managers have Tried to terminate me multiple times for missing work. They do not have to find someone to cover for me as there are several others that perform same job. Matter of fact i haven't Performed my job description in very long time as I'm filling in for a different one. I talked to local EEO office and was told that they had right to fire me because I have Exhausted FMLA hours. Is this true

    Oct 14, 2014

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