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Alcoholism considered a disability.

Byline: ON THE JOB by Bureau of Labor and Industries For The Register-Guard

Question: My employee has just told me that she is an alcoholic and needs four weeks off to enter a rehabilitation program. Do I have to give her this time off?

Answer: Probably. Alcoholism is considered a disability under the federal Americans with Disabilities Act and the Oregon disability laws. Thus, a job applicant or employee who is an alcoholic is legally protected in many ways. Not only are you prohibited from discriminating against her because of her disability, but you must reasonably accommodate her alcoholism if this can be done without an undue hardship.

Reasonable accommodation can take many forms, depending upon the situation. It can include (but is not limited to) buying special equipment for an employee, changing an employee's work hours, altering the way the essential job functions are performed, or transferring one or more nonessential job functions to other employees. And sometimes, as in this case, it means giving the employee time off to receive treatment for a disability. And remember, you are always allowed to require medical certification for any illness-related absence, as long as you pay for any costs associated with that certificate.

The obligation to accommodate ceases when the obligation would be an "undue hardship" to your organization. Undue hardship is based on individual circumstances such as the size of your company, the number of employees, the impact of the accommodation on those employees, the potential cost of the accommodation, etc. If you were to deny this time off to the employee and the employee filed a discrimination claim against you, you would have to show the court or investigating agency why the employee's absence would have had this kind of severe impact on your organization.

Keep in mind that this absence also would probably qualify as treatment for a "serious health condition" under state and federal family medical leave laws. Under those laws, there is no exception for undue hardship, although the laws state that an employee must schedule treatment so as to provide a minimum of disruption for the employer.

Question: We have an employee who has been taking intermittent family medical leave one day a week for some time because of her mother's back surgery. We realize that this is a legitimate reason for leave, but we are concerned because she frequently talks about how much fun she has playing games on her mother's new high-speed wireless computer. Can we require a medical certification to see if she's really needed to provide care for her mother?

Answer: Yes, as long as you make the request in writing, allow the employee at least 15 calendar days to return the signed doctor's certification and pay the cost of any examination you are requiring. But keep in mind that the leave laws do not require your employee to be actually administering medical care for her mother. Simply being present and providing psychological comfort and reassurance is enough to meet the definition of "caring for" the employee's family member.

Question: Would it be discrimination to pay a higher hourly wage for workers on the graveyard shift, even though they perform the same work as employees on the day shift?

Answer: Not unless the higher pay is based upon a discriminatory reason. For example, you could not create a policy saying that people younger than 40 are paid a higher wage than older workers, or that employees who have never filed workers' compensation claims receive a bonus for that reason.

But it appears that your pay differential is based only upon work-related criteria - the particular shift an employee is working.

As long as you make this clear to your employees (preferably in a written policy) and apply it equally to all workers on those kinds of shifts, you should be fine.

Question: On a slow workday, we sent an employee home after one hour. Are we required to give him a minimum of four hours of pay for showing up?

Answer: Not if the employee is 18 or older. Several years ago, there was an Oregon law that required employers to pay a minimum number of hours in these cases, but that law was repealed in 1990. Now, you are required to pay only for the hours the employee worked (unless, of course, your policy provides for more). Note that there still is a show-up pay rule in force for minors younger than 18.

See www.oregon.gov/boli for more information on these and other important issues for employers.
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Title Annotation:Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Apr 24, 2005
Words:758
Previous Article:MALL MAKE-OVERS.
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