Can a Ghost Qualify for FMLA Leave?

October 28, 2015


RSL_WhisperTheGhostQ:  Whisper the Ghost is having problems with his visibility controls and is constantly transparent. Can he take FMLA leave from his long-time job as desk clerk at the Stanley Hotel until he can make himself visible to guests checking in?

A:  Maybe. An eligible employee is entitled to FMLA leave if he cannot perform one or more of the essential functions of his position due to a serious health condition. Is checking in hotel guests an essential function of Whisper’s job?  Is visibility an essential function? If so, follow the usual process to determine whether his constant transparency is a serious health condition – send him the eligibility notice, rights and responsibilities, and certification form to get an opinion from his health care provider. Not sure what medical specialty will be needed but it is Whisper’s obligation to obtain a certification from an appropriate provider.

What if you learn that Whisper’s condition is permanent and he will never again be able to show himself? Well, if this constitutes a disability under the ADA, Whisper’s employer doesn’t have to remove the essential function of being visible to guests checking in, but the Stanley may be required to consider if there is another open position to which it can reassign Whisper. Room service, perhaps?  Ruffling curtains and shaking doorknobs to preserve the Stanley’s reputation as haunted? The EEOC expects employers to proactively seek out an alternative position for a disabled employee if no other accommodation will work. More on that another day…