Your Employee Has Requested an Accommodation. Now What?
Flo’s been employed by Steffans Legal for approximately 1.5 years. She works full-time, with a schedule of 8:30 am - 5:00 pm, Monday-Friday. Steffans Legal has four full-time employees, including Flo. During her 1.5 years, Flo has functioned primarily as a guest greeter and a notary.
Yesterday, Flo came to our management team and revealed she’d been diagnosed with Lyme disease and asked to be able to periodically arrive late to work on mornings she has flare ups. (Please ignore the ginormous HIPAA violation involved in us disclosing this). We immediately took a vote and decided to reject her requested accommodation and end her employment immediately. Elliot quickly chimed in. He thought that may not be ‘fair’ and recommended we take a look at whether Flo may be covered by employment laws given that she has Lyme disease (eyerolls).
Is Flo Covered by the Family and Medical Leave Act (FMLA)?
She is not because Steffans Legal is not. In order to be qualified for FMLA leave you must (1) work for a covered employer and (2) be a covered employee with a covered condition. Flo likely satisfies #2 as she’s worked (if you can call it that) more than 1250 hours in the previous year and because her Lyme disease amounts to a ‘serious health condition.’ But, that doesn’t matter, because Steffans Legal isn’t covered by the FMLA because we didn’t have 50 or more employees in 20 or more weeks in the current or previous calendar year. If we were covered, Flo would be entitled to 12 weeks, total, of unpaid leave that she could use intermittently to address her flare ups. Strike 1, Elliot.
Is Flo Covered by the Americans with Disabilities Act (ADA)?
Again, this is a no-go for Flo. In order to be entitled to protections under the ADA you must (1) work for a covered employer and (2) have a covered condition. Her Lyme disease almost certainly satisfies #2 as it substantially limits a number of major life activities, including her ability to walk, bend, and lift. But, that, again, doesn’t matter, because Steffans Legal isn’t covered by the ADA because we don’t have 15 or more employees. Strike 2, Elliot.
Is Flo Covered by Massachusetts Chapter 151B?
Nope. Massachusetts has adopted a version of the Americans with Disabilities Act that applies to employers with fewer than 15 employees. But, it does not apply to employers with fewer than 6 employees. We have fewer than 6. Strike 3, Elliot.
Is Flo Covered by the Massachusetts Equal Rights Act? And, if so, is her request for accommodation reasonable?
Yes. The Massachusetts Equal Rights Act (MERA) essentially provides protections similar to those provided by the ADA and M.G.L. Chapter 151B but without any minimum employee requirement. That means Steffans Legal, like all Massachusetts employers, is covered by MERA, regardless of size.
Ok, so MERA applies to Steffans Legal. But can it help Flo here? Well, Flo’s Lyme disease almost certainly qualifies as a disability entitling her to MERA protection in that it substantially limits a number of major life activities, including her ability to walk, bend, and lift. So that means Flo is entitled to a reasonable accommodation to address the symptoms of her disease. To date, she’s asked to be able to come late to work periodically when she has flare-ups. Is that reasonable? Does it present a undue hardship? Here, I think we need to grant this accommodation. We have other notaries who can fill in on mornings when Flo is late (we hardly ever notarize anything anyways) and Elliot is always here to fill in on greeting duties if Flo can’t make it in by 8:30.
Elliot was right on this one. Had he not interceded and slowed us down before we rejected her requested accommodation, we would have likely exposed ourselves to unnecessary risk.
Wait. What About the Earned Sick Time Law? Is Flo Covered by That?
Yes. Flo is definitely covered by the Earned Sick Time Law. Steffans Legal, like all Massachusetts private employers, is subject to the Earned Sick Time Law. Under that law, Flo has accrued the right to approximately 40 hours of sick leave. So Flo has accrued time…but can she use it to cover herself for her morning flare-ups? Probably because she’d be using the time for her own physical illness that requires home care. It would certainly be covered if she wanted to use the time to attend a medical appointment. Thanks, again, Elliot (I guess).
Employees suffer from all sorts of mental and physical impairments. Those impairments oftentimes require them to miss work or to seek an accommodation to their job. Employers should consider all legal protections afforded to those employees before deciding how to respond to those requests.
We decided to grant Flo the accommodation because we thought the law required us to do so. Who are we kidding? We did it because we love her! Get better Flo!!
If you are an employee and have questions regarding reasonable accommodations contact us today for your free consultation.