Can an Employer deny ADA recommendation

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Can an Employer deny ADA recommendation

My boyfriend has been at his job just over 6 months. He has an old Knee injury that flared up. He went to his Dr. and got his ADA paper work filled out and submitted to his Employer because he has been missing a lot of work since he works in a call center, they have a very strict attendance policy and ADA saved him from getting fired. His employer called him twice to change his mind about going on short term disability instead of the recommended ADA time off that his Dr. requested. Then they stated they can not accommodate this recommendation that maybe he can go back to his Dr. and modify it to less time off. I asked them to put this in writing and send it to him via the company they use for their ADA which is Sun Life. What is my boyfriends Rights when it comes to ADA and his Dr.
s Recommendation ? Can the employer ask my boyfriend to modify his Dr.’s Recommendations to fit company work flo ? We need help please. Nancy and Thomas

Asked on May 4, 2018 under Employment Labor Law, Arizona

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

There is a common mistaken belief that being allowed to miss work is an ADA accommodation. It is not (except to a very limited degree: getting breaks to check blood sugar level, being allowed to go to doctor's visits, etc.). An ADA accommodation is a change in rules or procedure, or provision of some device or furniture, that is not too expensive or disruptive for the employer and lets the employee do the core or essential parts of his or her job. So, for example, if someone is, say, a store cashier or clerk who normally stands but who could do his/her job while sitting, a knee condition would require providing a chair or stool and letting the employee sit.
But the employee must be able to *do* the job--and missing work is not doing the job. You can take unpaid medical leave under the Family and Medical Leave Act (FMLA) IF your employer has at least 50 employees located within a 75-mile radius (and you have worked there at least a year, and worked at least 1,250 hours in the last 12 months), but that is your right to miss work for medical conditions; it is FMLA, not the ADA, that lets you miss work, and only if you qualify under the FMLA. If you don't qualify under FMLA (or have used up the 12 weeks it gives you), you can only miss work if you have and use PTO (paid time off, like sick or vacation days) for it: there is no right to miss work without using FMLA or PTO.
So if your boyfriend doesn't have PTO (or not enough, anyway) and can't take time off under the FMLA, they can terminate him for missing work. Not going to work is not a reasonable accommodation.


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