The Mailbag.

What if an employee states a medical condition but doesn't ask for an accommodation?

Q A new exempt employee has trouble completing tasks. He said he forgets because he was recently diagnosed with bipolar disorder. We sent a reasonable accommodation request form to be completed by him and his physician. He responded by saying he doesn't need an accommodation at this time. Since he disclosed his condition as a reason for not completing work, what's our obligation? He has been out frequently.--Lorraine, New York

  1. In many cases, the employee's decision to decline to provide medical information would justify your decision to move forward now with discipline based upon his flawed performance and attendance issues.

    In this case, however, he suggested he has a disability that involves a mental health condition. And we cannot know whether his condition is preventing him from appreciating the risk that his failure to address his attendance and concentration problems may pose to his employment. Because you are aware of his condition, there may be some risk to your organization if you don't follow up.

    During a performance counseling session (feedback on performance is still important!), consider acknowledging that he advised you that he suffers from a disability and ask him again if a possible accommodation might allow him to be more successful.

    If he again declines, you cannot force him to engage in the interactive process. But another effort might encourage him to realize that if he thinks his health condition might be impacting his work, a reasonable accommodation might be possible before his loses his position with your organization. Document all these discussions.

    When can grandparents qualify to take FMLA leave for a sick grandchild?

    Q An employee has a 30-year-old daughter with mental health issues who lives with her. The daughter recently had a premature baby who is in the NICU. The employee (her grandmother) is asking for FMLA leave to take care of the baby when it comes home. Would this qualify under FMLA? The grandmother has not been appointed guardian.--Ann, Florida

  2. Although grandparents typically do not qualify for FMLA, that rule is not absolute. It seems your employee might qualify in this case. Here's why:

    The FMLA allows eligible employees to take up to 12 weeks of unpaid leave to care for their own condition or to help care for an "immediate" family member. That definition doesn't include grandchildren. But a grandparent may...

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