Hoosier Banker 31 < JOHN TANSELLE < DEBRA MASTRIAN < STEPHEN STITLE < MARTHA LEHMAN LARRY TOMLIN > MARK WENZEL > BRANDT HARDY > 201 North Illinois Street, Suite 1400 Capital Center, South Tower • Indianapolis, Indiana 46204-4212 T: 317.464.4100 • F: 317.464.4101 • salawus.com No challenge too great… we’ll get you there. CARRIE HILL > < MADALYN KINSEY A “disability” is a physical or mental impairment that substantially limits one or more major life activities (e.g., breathing, concentrating, working).2 “Substantially limited” means that the employee is unable to perform a major life activity that the average person in the general population could perform, or that the employee is significantly restricted as to the condition, manner or duration under which the average person in the general population could perform the same major activity. The definition of a disability has expanded over the years. Even temporary conditions and impairments may be considered disabilities, if they are sufficiently severe. Typically, however, conditions or impairments that last a short time with little or no long-term or permanent impact are not disabilities. Thus an employee who has COVID-19 for two weeks with no lasting symptoms or complications is likely not covered by the ADA, whereas a long-hauler may be protected. An individualized assessment is necessary. An employer may request information from the employee’s health care provider to determine whether the medical condition constitutes a disability and, if so, whether the employee is a qualified individual with a disability under the ADA. If the employee is covered by the ADA, the employer must engage in an interactive process with the employee to determine if there are reasonable accommodations that may enable the employee to perform the essential functions of the job. Reasonable accommodations may include a modified work schedule, removal of nonessential job functions or teleworking, depending upon the circumstances. Employer Best Practices Employers should inform and train their managers about their obligations and potential application of the FMLA and ADA. Even if the FMLA and ADA do not apply, an employee may be entitled to leave under state or local sick leave laws or the employer’s leave policies. When an FMLA-eligible employee reports he or she is sick with COVID-19, the cautious approach is to send the employee an FMLA certification form. [Note: It is risky to deny FMLA leave without first taking steps to determine whether the absence qualifies for FMLA protection. Once the employee returns the completed medical certification, the employer can then assess whether the condition is a serious health condition. Long-haulers who present sufficient documentation should be given the benefit of the doubt.] If a long-hauler requests an accommodation, engage in the interactive process and follow the company’s ADA policy. HB The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. 1 29 C.F.R. § 825.115. 2 A disability under the ADA also includes being “regarded as” having a disability, even though the employee does not have an actual disability. Although an employer does not have to reasonably accommodate the employee in that situation, the employer is prohibited from discriminating against the employee.
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