The Mailbag.

PositionLetter to the editor

After learning of possible serious medical condition, what are our legal obligations?

Q An employee told us he has a bad hernia. He wants to wait a couple months to have the operation, since it requires six weeks' recovery. He does some lifting in his job. Yesterday, he had to go home early because he was in pain. Now that we are aware of his condition, what's our liability? And what should we do?

A First, you should report the injury to your workers' compensation carrier. Second, the employee has provided sufficient information to place you on notice that he may have an injury that qualifies as a serious health condition under the FMLA (assuming that you and the employee are covered under the FMLA). It may also qualify for short-term disability coverage.

You should provide the employee with information about your FMLA and STD policies, and follow the procedures to determine if the employee qualifies for such leave.

If the medical certification suggests that there is any urgency to having the surgery, you should permit the employee to take leave without waiting a couple months. In addition, under the FMLA, the employee may qualify for intermittent leave to cover days when the employee is unable to work because of pain.

If the employee isn't eligible for FMLA leave, he may still be eligible for time off as a reasonable accommodation under the ADA. If the hernia is severe enough to substantially impair a major life activity like walking, it may be a disability, and time off may be a reasonable accommodation.

What to do about employee who takes long leaves for medical problems?

Q We're a small business with eight employees. One employee frequently takes off for six to eight weeks with medical problems. She's done this each year for the past three years. It's a huge burden because very few people have her training, so we can't hire a temp. How long do we have to allow her to disappear for weeks at a time?

A Since you have fewer than 50 employees, you are not covered by the FMLA. Therefore, the answer depends on whether the employee has a disability covered by the ADA or the Pennsylvania Human Relations Act. If so, the question becomes whether allowing her to take medical leaves is a reasonable accommodation or whether it imposes an undue hardship on your business. Those questions must be evaluated on a case-by-case basis.

You should be careful that you act consistently. Have you allowed other employees to be absent for significant periods of...

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