Unhealthy Employee

Cindy Hanna

Hi everyone,

Here is what happened this morning. One of our employees came into my office this morning telling me that a co-worker is having chest pains and can not get out of his car. I went out there and the employee was in the back seat of his car holding his chest and could not breath very well. I immediately called 911. The employee has to travel about 45-1 hour to get to work. The employee told me he had chest pains when he left his house for work this morning. This is not the first time that this particular employee has done this. He has come into work literally crawling up stairs because he is in so much pain.
I am worried about him hurting other people on the way to work. He also drives truck for us. A CDL is required.
I really am worried about him hurting someone else even when he is driving for us. Blacked out once while driving for us. Thank goodness he was at a job site waiting to get unloaded. No one was hurt.
This employee will have to have a medical clearance from his Dr. to come back to work. He has had a heart attack 21/2 years ago among many other medical problems and his Dr. keeps clearing him. He's been with the company 10 years and is 50 years old.
Is there legally any thing we can do?

Any type of advise will be very much appreciated. Thank you

Cindy

Parabeagle

If the dr. keeps clearing him to return to work, I would get another opinion... and another, and another until I was comfortable that the release I was getting had some validity. It's your right as an employer to require these second opinions, so long as you're covering the expense. I am very concerned that you have an accident waiting to happen with this employee and I would share my concerns (as outlined in your post) with the physician to whom I refer him for a second opinion. Good luck, Cindy. This is an ugly one.

Cindy Hanna

Thank you Parabeagle for your response. I will get a second or third opinion. I am very worried also about any type of accident in a company truck or Personal vheicle. I have never experienced this type of behaviour before. Most people would stay home. But that makes to much sense.

Parabeagle

Some employees are just too darn stubborn (or stupid) to know when to stay home, see a dr., go to the hospital, etc. and don't think about (or care about) the liability their behavior can expose the company to. We reserve the right to require a fitness-for-duty certificate from a physician. If we are skeptical about the release, we will require a second opinion from our own doctor. Our policies also specifically state that a supervisor can send an employee home on sick leave if the employee appears to be ill or somehow impaired and unable to do his/her job.

Good luck, Cindy

Theresa Gegen TX

I am wondering if his doctor is aware of the requirements to have a CDL. It sounds like a person with a history of blacking out while driving, etc., would probably not be eligible for a CDL under the dot regs. You may need to check the DOT regs to find out if you can order a complete physical for updating the CDL -- which may screen him out.

Good Luck!

jimlegal

I have an extreme concern that you have an accident waiting to happen! You have an obligation for the health & safety of other employees and the general public. Under ADA you can request the employee take a physical exam, especially since this employee's job function could pose a threat to public safety. You may also request a physical examination even if some other statute requires a physical examination for a license. Federal Highway Administration and DOT have medical certification requirements for truck drivers. 49 C.F.R. pt 391 (1999). You may wish to visit [url]www.eeoc.gov/laws/ada.html[/url] and [url]www.eeoc.gov/docs/guidance-inquiries.html[/url] for some guidance. Your state may even have some statutes concerning physical examinations and commercial drivers license which may be more stringent that the Federal Highway Administration and DOT requirements. Regardless of what some health care provider may say, having knowledge of this serious medical condition mandates that you take steps to not only protect the public and fellow employees, but also reduce the liability to the company. One other avenue of concern is that this employee maybe defined as disabled. I hope you find this information helpful.

Balloonman

"I really am worried about him hurting someone else even when he is driving for us. Blacked out once while driving for us. Thank goodness he was at a job site waiting to get unloaded. No one was hurt." Please add the two words "this time." All of the lawyers on here can tell you what the liability is to the company if he is allowed to drive and blacks out causing an accident. You need to send him to an occupational clinic to have another DOT physical, and make sure YOU inform them of all medical issues that you are aware of. He may be lying to them when he has his physical, or is he using a non-company doctor?
My $0.02 worth.
DJ The Balloonman

Cindy Hanna

The employee uses his own Dr. He is still in the hospital. I have told him that he will not be able to return to work without medical clearance. However, if his Dr. gives him clearance I will let the employee know he will be going to a Dr. of the company's choice for a complete physical before he is allowed to return to work. As far as him blacking out we did not find this out until a week later.

I am trying to find out legally if we can let him go or not? His Dr. knows what type of job he has and the responsibility of driving a ready mix truck.
Believe me we are on pins and needles when it comes to this employee. We are in a very difficult position right now.

We know what could happen. If his Dr. releases him and the employee goes to a Dr. the company picks and that Dr. says he's o.k. to work then what?

Can we get rid of him legally?

Parabeagle

One thing to remember is that your employee may have compromised his doctor by not telling him everything that's wrong with him. His doctor can only make recommendations based on what he can deduce through tests and what the patient tells him. So he may not be getting the whole picture and releasing him to work based on incomplete information. That's why the second exam is so important. If that dr. signs off, why not approach it from the CDL route? I don't know what it's like in your state, Cindy, but in Oregon if you know of someone who is unable to drive safely, they can be reported to the DMV who then will take steps to ensure the individual still meets the requirements for their license. If they don't, they're license is pulled.

Margaret Morford

Cindy,

Before you go to a second opinion, I'd write a letter for the employee to take to his doctor describing the job duties and physical requirements, including any DOT requirements. Also describe the incidents you listed in your posting as well as any others you are aware of. You may be surprised about what the doctor may not know because the employee wants to come back to work. You may want to get some legal advice on this, but I'd include a statement like, "We need to make sure that the employee is not a danger to himself or to anyone else in the workplace." If that doesn't make the doctor's medical malpractice antennae go up, nothing will. If he still clears your employee, I think you proceed to a second opinion.

You've already understand the danger of the second opinion. You will have to take him back if the second opinion says so. However, I think that if you fire him now, you're going to get sued anyway. So what do you have to lose?

If you get a second opinion, use the same letter, but shop for your second opinion doctor carefully. Ask your WC carrier for a conservative doctor's name. Call the doctor's office, tell the receptionist that your are the HR person from ABC Company and you are looking for a doctor to do your second opinions. Ask to schedule a time to speak to the doctor via telephone. Explain to the doctor that often you have concerns about employee's ability to return to work and that you want to make sure he/she is not afraid to disagree with another doctor's findings. If you get any hesitation, pick another doctor. Explain to the doctor that his/her bill will be paid by ABC Company whenever he/she is called upon to render a second opinion. It doesn't hurt to remind the doctor who the client is. This is the type of business that any physician would jump at. No claims hassles or collection hassle. Invite the doctor to tour your facility if he/she would like.

Hope that helps!

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Cindy Hanna

Thank you Margaret for your advise. The employee was released from the hospital today. The employees Dr. determined that he did not have a heart attack. However, we told the employee we still want a release from his Dr. and for his Dr. to call me. I really want to talk to the employees Dr. letting him know whats been going on and how unsafe it is for the employee to be driving. If his Dr. still clears him then we will tell the employee to go for a complete physical by a Dr. that we have chosen.

Good idea about wc.

Balloonman

Check and see if the occupational clinic that you use performs CDL exams. Have you developed a relationship, or has the safety manager developed a relationship with the clinic & doctors? If you/they have you should have little problems. The fact that he blacked out should automatically eliminate him from a CDL as would diabetes and a number of other health related issues.
I come from a safety background, and have worked long and hard to develop a good working relationship with my doctors and to learn which ones in the 8 clinics in our metro area will give me what I need. I have two doctors I use for those that might be malingering.
If you have an occupational doctor that you can talk with and explain the situation I would do that. It does not sound like he is qualified for a CDL anymore. Talk to the clinic about what disqualifies individuals from a CDL. Once you have this info you can talk to his doctor. The suggestion that you send a letter is a good one. I would also put in it that you want make sure the doctor has a clear understanding of the health issues your employee has been struggling with. You also want to make sure that it is clear that the doctor must state in writing that the employee is still qualified to possess a CDL.
My $0.02 worth.
DJ The Balloonman


Side note: For everyone if you have not done so, start working on developing a good working relationship with the occupational clinic(s) that you use. This means developing a relationship with the clinic coordinator, as well as the primary doctor and physical therapist. They should have a clear understanding of your expectations of them. Where you stand on restricted duty, and weather YOU consider it acceptable for them to take employees off of work. This resource can literally save you tens of thousands of dollars and make some of your more challenging WC issues easier to deal with.
There, that is about a nickels worth.
DJ

jimlegal

Doesn't the employee sound like they may be disabled? If so, what about accomodation? Thoughts???

Balloonman

Jim,
If they are required to have a CDL to do their job, and lose it there is no accomodation that can be made, or is required to be made. They can still work, just not at that job, with that company.
My $0.02 worth.
DJ The Balloonman

Cindy Hanna

I spoke with the employee's Dr. today. I told the Dr. about the medical history of the employee and he was a little surprised at him blacking out. The employee is actually going to see the Dr. tomorrow. I told the Dr. that the employee will not be able to come back to work unless he is medically cleared and a letter stating that this particular employee can operate a commercial motor vehicle safely.

DJ calling the DMV is a very good idea also. Thank you.