Employees who get ill protected.

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

Question: I manage an insurance company, and we are currently undergoing massive renovation. One of our employees is having asthma attacks and allergy problems because of the construction and dust in the building. She is completely unable to work, even though no one else at the store has been affected. The construction is scheduled to continue for several months. How long are we required to hold her job while she is out?

Answer: That depends on which laws apply to your business and whether this employee qualifies for protection.

It's possible that your employee's condition is a permanent or long-term disability covered by the Americans with Disabilities Act and the Oregon disability laws. Your business is covered by the ADA if you have 15 or more employees and covered by the Oregon laws if you have six or more employees.

If these laws apply, then your obligation is to make reasonable accommodation. That could include modifying her duties, partially or totally changing her location, buying her special equipment, transferring her to a vacant position, or taking other measures that would still allow her to perform the essential functions of the job.

It's also possible that this employee qualifies for protection under the Oregon Family Leave Act, or OFLA, and the federal Family and Medical Leave Act, or FMLA. Your company is covered by OFLA if you have 25 or more employees in Oregon and covered by FMLA if you have 50 or more employees in the country. If the employee has worked long enough to become eligible for protected leave and her condition qualifies as a "serious health condition" under various definitions, she would be entitled to take up to 12 weeks of protected leave.

Another possibility is that the employee's condition is an occupational illness. If she files a workers' compensation claim that is compensable, she could have rights to return to her original job or to light duty work. The laws that grant such rights cover organizations with 21 or more employees or 6 or more employees, respectively, and these rights can last for up to three years from the date of the injury or illness onset.

If your employee's Workers' Compensation claim was denied because of a pre-existing condition, these return-to-work rights wouldn't apply. Similarly, if the employee turns down an available, suitable job while waiting for a full doctor's release, she could lose her Workers' Compensation reinstatement rights.

Keep in mind, however, that just because she loses her rights under one law does not mean she won't retain them under another one. For example, the employee here would still be entitled to reinstatement rights under the family medical leave laws, if she is in fact able to work at the end of her 12 weeks (or less, if she doesn't need that much time).

As mentioned, it is also possible that the employee has a disability and is entitled to reasonable accommodation. That accommodation may involve the modifications suggested above, but it could also mean giving her time off work and then reinstating her to her original job. As with all accommodations, the length of any time off would be determined by what is reasonable for your business, considering all the circumstances. You could deny this type of leave if you could show it would pose an undue hardship on the business.

Under all of these laws, you're entitled to request medical certification to help you determine the employee's limitations. It's always a good idea to get this kind of medical documentation, as it avoids you putting yourself in the position of "diagnosing" the employee (a role you are presumably unqualified to play). Remember, however, that Oregon law states that if an employer requires a medial exam or a medical certificate, the employer has to pay any out-of-pocket cost the employee would have incurred.

If none of these laws apply, then it will be up to your company leave policies to determine how long you'll hold the employee's job, as long as you apply those policies in a nondiscriminatory way.

For more information, go to www.oregon.gov/BOLI/TA/T_FAQ_Tafaq.shtml.

On The Job is written by the staff of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.