Q: I am a disabled hourly employee, working full time. The snow storms have made it difficult for me to get to work. I was told that I cannot make up time missed by using vacation or sick time. Is that correct? I have been willing to make up time on the days that are not inclement (my day off or on weekends) but was also denied that opportunity. Can they also take away my health benefits if I cannot work the scheduled hours? Is it true that you cannot use accrued time to pay for your absence from work?
A: Many companies are trying to decide if a “snow day” is a day to work from home, a day to come to work regardless of the weather, a day off with no pay, or a day off with pay. Your situation adds additional complexity to an infrequent, but challenging issue for employers and employees.
I consulted with David Conforto, founder of Conforto Law Group, P.C. a Boston-based boutique firm concentrating in all aspects of employment law and dedicated to the representation of employees. Attorney Conforto suggests the first issue to be addressed is whether you are “handicapped” or “disabled” under state or federal anti-discrimination laws.
You satisfy either definition if you are substantially limited in a major life activity, which includes walking and standing, or major bodily functions. It is imperative that you determine whether you satisfy the definition of “handicapped” or “disabled” and, if that’s the case, inform your employer about your medical conditions and limitations.
Once you provide such information, your employer has a duty to participate in the “interactive process,” which is a key mechanism for facilitating the integration of disabled employees into the workplace. This process requires an open dialogue between you and your employer with the goal of identifying “reasonable accommodations” that will allow you to do your job. An accommodation will be deemed “reasonable” if it does not pose an undue hardship on your employer.
In situations such as yours, it’s not uncommon for employers to take the position that, notwithstanding your disability, the duty to accommodate does not apply to commuting because commuting to and from work falls outside of the work environment. In the related lawsuit, the court agreed with the employer, and the appeals court reversed the ruling, stating that “under certain circumstances the ADA can obligate an employer to accommodate an employee's disability-related difficulties in getting to work, if reasonable.”
Overall, if you can establish that you suffer from a handicap or disability, the employer must engage in the interactive process with you to determine if a reasonable accommodation exists that will ease the burden associated with your commute and disability.
Do your research. Check the employee handbook to determine the minimum number of hours per week, over what time frame, is needed to qualify for medical insurance. Look to see if a reference is made to what extent accrued time can be used to satisfy this minimum. Asking colleagues about their experience with similar situations can help you gain insight into the employers practices in addition to any written policy. If your employer typically allows employees to use accrued time flexibly to make-up missed hours or to qualify for medical insurance, then the policy or practice should be applied to you too or this can be evidence of discrimination.
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