WorkComp Advisory
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HR Updates: COBRA, FMLA and ADA

COBRA involuntary termination

Many employers grapple with defining "involuntary termination" under COBRA. A recent IRS bulletin, answers several questions for purposes of determining whether there is an involuntary termination under section 3001 of ARRA (including new Code sections added by section 3001 of ARRA – but not for any other purposes under the Code or any other law).

Leave as a disability accommodation after exhaustion of FMLA leave

When employees are covered by both FMLA and ADA, an employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take. It is possible that an employee will require more than the 12 weeks leave granted under FMLA for a serious medical condition. Under the ADA, they are able to take off additional time for their medical condition unless it creates an undue hardship. Our strategic partner, HR That Works!, suggests that the following factors be taken into account when considering whether or not to grant a leave:
  • When the employee expects to return to work.
  • Whether the absences will be planned or erratic.
  • Whether they will be able to perform their full duties when they return.
  • Whether the employee was hired to perform a certain task.
  • Whether additional leave and temporary employees are more costly than hiring a new employee.
  • Whether the leave creates an undue hardship under the circumstances.
Additional information available from EEOC

Accommodating disability side effects - (From HR That Works!)

When an employee requests an accommodation, employers should make two separate determinations: (1) Does the employee have a disability; and (2) Does the employee need the requested accommodation because of a limitation (any limitation) associated with the disability? To see how this applies to "side effects," the EEOC gives this example:

Q: Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?

A: Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting from a disability.

Let's say that an employee with cancer must undergo chemotherapy twice a week, which causes her to be quite ill afterward. The employee requests a modified schedule — leave for the two days after chemotherapy. Because the treatment will last for six weeks, she requests a leave for this period. The employer must comply unless doing so would constitute undue hardship.

Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations may also require reasonable accommodation.