Chronic, serious, progressive or terminal illness of employees or their family members often present significant legal as well as practical problems for employers. Workers with such illnesses often want or need to continue working, even as their health conditions place increasing burdens on their ability to perform their jobs effectively.
Numerous laws, such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and other state and federal laws, may apply to employers and employees coping with chronic illness. However, these laws often provide inadequate guidance for clearly and effectively managing the complex issues raised by such conditions in the work place. To make matters more difficult, employees with chronic and terminal illnesses are more frequently choosing to remain in the workforce for as long as possible. Employees want to remain productive and often prefer to keep their life as normal as possible. Of course these employees desperately need their employer sponsored health and disability insurance coverage, which is a strong incentive for them to keep working.
Another obvious reason that employees continue to work when they have a chronic illness is due to pure financial implications. Short-term and long-term disability insurance pays only a percentage of an employee’s earnings. The Family and Medical Leave Act (FMLA) provides up to twelve weeks of job protected unpaid leave for employees who work for an employer with more than 50 employees and meet certain other requirements. As a result, many employees continue to work through chronic, long-term and serious illnesses.
Employees with chronic or terminal illnesses have many reasons for not wanting others in the workplace to know about their condition. Disclosure of certain types of dis- eases, such as mental illness, HIV and AIDS and cancer may result in stigma and embarrassment for the employee. In addition, coworkers may express discomfort about working with an ill coworker who is exhibiting outward signs of illness (e.g., hair loss, weight loss, fainting spells, speech impairment or loss of motor coordination, etc.), or may harbor fears of “catching” the employee’s illness. However, such concerns by coworkers are not valid reasons for an employer to discuss an employee’s medical condition.
Employee awareness of a coworker receiving special treatment, but not knowing the reason, can create morale problems and expose the employer to claims of discrimination. Coworkers may become resentful of absences and other accommodations such employees receive. Some employees resent having to pitch in and take on additional job responsibilities. Employers are nevertheless prohibited from disclosing that an employee has been provided a reasonable accommodation, as this is tantamount to disclosing that the individual has a disability.
The EEOC suggests that employers try to head off such problems by providing all employees with information and/or training about the employer’s obligations to meet certain employee needs under FMLA, ADA, and privacy laws. In response to direct questions from coworkers about different or special treatment, the EEOC suggests that employers:
- Emphasize their policy of assisting any employee who encounters difficulties in the workplace
- Point out that many workplace issues encountered by employees are personal
- Stress it is the employer’s policy to respect employee privacy.
It may also be helpful in these circumstances for the employer to refer coworkers to the Employee Assistance Program (EAP) to address their concerns.
Employers are required to maintain confidentiality of medical records and to refrain from disclosing facts about an employee’s physical or mental condition, except as necessary for legitimate business reasons (e.g., to provide emergency medical treatment or to facilitate a reason- able accommodation). Even when the employee has freely disclosed medical information about himself/herself, the employer should never be the source of such information. Even seemingly harmless communications, such as an email about an employee’s successful surgery is not permitted.
Under the ADA, any medical information obtained from a disability-related inquiry or medical examination, including any medical information voluntarily disclosed by an employee, must be treated by the employer as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel.
Employees with chronic or terminal illnesses have many reasons for not wanting others in the workplace to know about their condition.
Work place accommodations are frequently needed when dealing with an employee with a chronic illness. The most common accommodations for a disability include: ex- tended and/or intermittent time off from work, parking and transportation modifications, facility and equipment modification, and job and work environment restructuring. When an employee requests an accommodation for a disability or when the employer is aware for such a need, it is important that the employer conduct an “interactive conversation” with the employee about how that accommodation may work best. Often, the employee is the best resource for helping to work through an accommodation issue. The employer is not required to make an accommodation that would create an undue hardship on the business. However, an undue hardship is a high threshold and an employer should seek counsel when making such a determination. An employer is not required to reduce productivity requirements as an accommodation. The employee must be able to perform the essential functions of the job, with or without an accommodation.
Employees with chronic or progressive illnesses may require specific accommodations related to their need for or to manage the effects of medication. For example, an employee who needs to take medication with food may require an exemption from an employer’s policy against eating at workstations or may require permission to take additional breaks.
While employers have no obligation to ensure that employees take prescribed medication, they are not relieved of their duty to provide reasonable accommodation to disabled employees who fail to take prescribed medication, obtain medical treatment, or use assistive devices. How- ever, if a disabled employee, with or without accommodation, cannot perform the essential functions of the position or poses a direct threat to others in the absence of medication, treatment, or an assistive device, the employee maybe deemed not “qualified” for the position.
Beyond the legal obligations, employers seeking to provide a supportive environment for an employee with a progressive illness must engage in a delicate balance between the needs of the employee and the business and financial needs of the company. These needs may prove to be physically and emotionally substantial for the employee, and may have an impact on the employee’s coworkers as well.
Issues that typically arise for employees who have a chronic or progressive illness include increased tardiness and absenteeism, fatigue, decreased concentration, loss of productivity, loss of motor coordination and/or control of bodily functions. All of these issues may have a significant impact on the employee’s job performance and safety. The law makes certain requirements about what an employer must do to accommodate such employees. Employers who wish to go beyond the parameters of what the law requires may be as creative and generous as they wish, provided their approach is consistent for all employees with similar needs.
Managing employees with chronic illness is an issue that is not going to fade away. As the workforce ages, and baby boomers continue to work longer, the expectation is that more and more employees will continue to work during a chronic, long-term illness. Managing serious medical issues of employees and running a business can be a challenging balancing act. Employers should have policies and procedures in place to manage these situations, and be prepared to be flexible and compassionate while meeting the goals of the business.
Human Resource Services, Inc. (HRS) is a subsidiary of PAS offering assistance in creating policies, best practice procedures, and compliance training.
This article is not intended to be construed as legal advice, but is provided as an overview of good business practices. PAS-It-On © 2013 by PAS and HRS, Inc. 9735 Landmark Pkwy., Ste. 17, St. Louis, MO63127-9968 (800) 356-0845 Material may not be reproduced without written permission.