Q & A: ADA Retaliation and Medical Inquiries, FMLA Responsibilities

01-Sep-2017

Question Corner

ADA Retaliation and Medical Inquiries, FMLA Responsibilities

By Jason R. Mau

Q: One of our employees said his manager made jokes about his disability, and he threatened to file a complaint with federal agencies. We investigated his claim, and the manager apologized to him. The employee has now admitted that he made it all up and is dropping the charges. Do we have grounds for dismissal, or will that look like retaliation?

A: Retaliation under the Americans with Disabilities Act (ADA) involves an employer who fires, demotes, harasses, or similarly treats an employee disparately for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination, regardless of the outcome of the discrimination proceedings.  However, employers may terminate employees if motivated by non-retaliatory and non-discriminatory reasons unrelated to the protected activity.  Filing dishonest complaints are not protected activity if the employee could not have reasonable believed that he had a viable discrimination claim.  Thus, you would have grounds for dismissal, but it is recommended that you document the investigation and admissions thoroughly. 

Q: We have an employee who has been employed less than a year. Her doctor stated that she will be out of work indefinitely until she can get an appointment with a specialist. It’s my understanding that we don’t have to hold her position. Can we terminate her now?

A: While she may not yet be covered under the Family and Medical Leave Act (FMLA), which would require holding her position, depending on the situation, your employee may be covered under the ADA if the impairment requiring a specialist substantially limits a major life activity.  If covered, you are required to work with the employee to see if a reasonable accommodation is available, which may include modifications to leave policies, unless it would impose an undue hardship on your operation.  Further, just terminating her now without addressing these possible issues under the ADA may be later found to be discriminatory. 

Q: Under the ADA, would we be violating employees’ rights if we asked them to identify any allergies they may have—e.g., bee stings, gluten intolerance, or lactose intolerance?

A: Generally, the ADA prohibits medical inquiries of employees unless it is job-related and consistent with business necessity because it will likely elicit information about a disability.  A little more latitude is allowed for pre-employment and post-offer inquiries, but once the individual is hired, the inquiries must be related to the job.  Inquiries related to these allergies have the potential to elicit disability related information.  Thus, if the inquiry regarding allergies is not work related, you would be violating employee’s rights. 

Q: We currently cover our employees’ health insurance premiums. If a salaried nonexempt employee takes FMLA (Family and Medical Leave Act) leave, are we required to keep paying the premiums, or does it become the employee’s responsibility at that point?

A: During leave, the FMLA regulations require the employer to maintain any group health plan coverage for all employees to the same extent it would have been provided if the employee had been continuously working during that time.   

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.