The dreaded triangle

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 10-06-03 AT 03:04PM (CST)[/font][p]FMLA/WC/ADA that is. We have an ee that is on intermittent FMLA for asthma. They just brought in certification that basically says anything including allergies can cause her problems and require her to leave for the day. Her original intermittent stated just paint fumes and chemicals. She is about out of FMLA, so she asks if it would be covered under worker's comp.

So what I think we should do is wait until she has another episode and file WC claim. We alerted out wc carrier that this will eventually come down the pipes. Suppose it is denied and her FMLA runs out, would you treat the condition as a disability and start the reasonable accomodation discussion or not? My gut is that if you started the resonable accomodation discussion it will go to a respirator (I can't imagine it would be undue hardship) and we would provide one. My next gut is that once she gets a medical evaluation they will not allow her to work (respirators can actually make some conditions worse beacuase they restrict airflow). Then we see what other accomodatins we can make. If she doesn't think of any, I don't think we can think of any and we end the relationship. Some of these is purley hypothetical, but I'm interested in the Forumites wisdom and to see if I missed anything. Thanks for your time. This is in IL.

mrsbowden

Would this still be considered WC? I guess I am asking if these attacks can occur with just about anything maybe even an allergy from something at home she wasnt aware of, and had a reaction after arriving at work would you still have to turn it in on WC? Or is it that if she has an attack at work PERIOD it is a WC claim? I would say if you have to make sure she isn't working with certain chemicals and substances etc. so to not have an attack, then that is a reasonable accomodation and would be an ADA issue. x:-/? Just thought I would type in my thoughts

SMace

Whetther it's worker's comp will be determined by IL state law and our degree of risk taking. If it is comp it would most likely be an expensive claim resulting in total permanent. The problem is we can be painting clear on the other side of the building and she will have a reaction. She does not have to be working with the chemicals or paint to have a reaction. Thanks for your thoughts.

Don D

Hatchetman is going to be your best bet on the ADA issue. I might recommend you consider a medical opinion as to whether this person, given his/her medical condition can in fact work at your business given its environment. No law would force you to put him/her in a daily environment that would expose him/her to known irritants to a known medical condition. If your company requires thorough pre-employment, post-offer physicals, how'd this person get passed to work in your environment given the medical condition?

SMace

Hopefully hatchetman will reply. Good point about our pre-employment health questions. Post-offer we have them fill out a health questionnaire and if they answer yes, we send them for a physical. Otherwise we don't. Sometimes saving money on the front end kills you on the back end. I will not find out what she put down until tomorrow. Usually, asthma is not really an issue in any of our plants. We are very clean (we manufacture food grade plastic products) and the chemicals are used for general cleaning. Not much more than what you would use to clean your house. We have many ee's with asthma that do not have a problem. What I hear from Pork is to go ahead and get an assessment if she can work in the plant, prior to any WC claims happening. I think reasonably we are now on notice that she may have an issue. A jury may see it as retaliation for WC claim (can you retaliate when it hasn't happened yet) but I see it as preventing a WC claim. If you know someone may have a health issue, shouldn't you try to prevent it?

Pork

SMACE: Just remember that there is always a potential of a W/C claim for "aggrevation of a previous exsisting condition", therefore, it reads like you have a medical problem on your hands and you should be heading off the extreme continuous pain of rolling over for this ee any time that she has an illness. You need to spent the money up front for a physical examination of this total person to see if she can even qualify medically to work in your industry. It takes a little work to get the ball rolling, but if you can get a physician to declare the individual as physically/medically disqualified, you can save a bunch of money and terminate now before she has time to connect every little particial of "whatever" to your company product. Accomodations may not even be a consideration, when she is a "sickly person" it becomes un reasonable to consider ever aspect of medical conditions to physical plant happenings from to cold, to hot, to dusty, to much body odor, to much emotions, to much danger, to much smoke, to wet, to dry, to much bad breath, the list can go on & on. I have heard them all! Some people are just not cut out to work in some places; they just can not stomach the environment. I have a female out now with both wrist identified as CTS and she admits she had it before coming to work with us. She has now been out for over a year with one surgery on the right wrist for that was her primary wrist for the work preformed. She was releast to return to regular duty with a 4 hour limitation daily as rehab. We gave her a different occupation of house/office cleaning forthe 4 hours a day, she did well but then claimed that the light duty caused her left wrist to become severely painful. We have denied the claim and now we are into the litigation actions. While getting the surgery for the right wrist she could have gotten her left wrist repaired through her enrollment in our medical plan. She choose not to do it and she chose to use her left wrist but never complained once about pain in the wrist until the physician released her to full duty. We had her tested and the retained physician advised that she did have left wrist carpul tunnel syndrome and disqualified her for physically working in our industry. She is fighting that so we continue her on W/C until the issue is settled and we can finally terminate. It can go on and on.

We have another case where the ee could be repaired and returned to active employment, but his other medical issues will not allow the physician to put him to the blade to fix him for fear he might not make it through surgery. We did finally terminate and we are hoping his SSI will be approved and he can get some financial relief and medical attention. He was medically disqualified from working in our industry. He is still entitled to some medical benefit but it is no where near what it could have been had we just kept him on W/C for ever.

PORK

scottorr

We had this almost exact situation happen just two weeks ago. FMLA ran out and we talked to her about WC and disability, reasonable accomidations, etc. We all agreed that this was not WC because the illness was not work related, because she had the asthma prior to working for us and triggers outside of work also caused attacks. Our employee has a position that is easily relocated to one of our other locations, we also offered to set her up to work from home. We agreed to do both. She is now relocated to our new building and has work access from home. I know that not everyone has this luxuary and my thoughts go out to you.

njjel

I would file the claim with worker's comp and let them make their determination first. I don't see this as ADA however, but would try to accommodate the ee in whatever reasonable way I could.

Don D

SMace! Say it ain't so! I remember Gillian posting a year ago that a client, in answer to Gillian's question about their medical evaluation/physical, answered something like, "We just send the sickly ones for a physical". We all got a guffaw out of that one. But, your post is obviously a serious one. Have you considered running that procedure by someone in the legal profession? Selectively sending for physicals only those who self-identify on questionnaires seems like a slope I wouldn't get onto.

Hatchetman

I'm sorry. I didn't see this post until now.

Asthma has obviosuly been held to be a disability since it can signficantly impair breathing -- which is a major life activity.

But that doens't mean the employee is ADA-qualifed even if he had a serious helath condition warranting FMLA leave or even if Workers' Comp approves a claim.

Assuming nothing in the doctor's FMLA statements demonstrates the degree of impairment to breathing or any other major life activity, you would need to start the interactive process to determine what if any reasonable accommodations would be implmented to allow the employee to perform the essential duties of the job (unless Workers' Comp authorizes something along those lines).

The evaluation of course for disability under federal ADA does permit the employer to make it on the basis of any remedial or mitigating measures, such as medication or devices, the employee uses for the asthma. Thus, for example, you could make the assessment of whether the medical condition significantly impairs breathing based on the medication the employee uses, for example. "Significant impairment" is viewed in the comparison to the average person being able to perform the major life activity. Thus, asthma for any particular individual is not automatically any impairment to breathing, especially if medication provides the effective relief.

Since you mention the use of a respirator, if a respirator was needed just to permit the employee to breathe sufficiently in the first place without regard to whether the essential duties could be done, that would not be considered an accommodation the employer would have to provide in most circumstances, since it isn't specifically job-related, and would appear to be more of a personal device that would be used outside the work environment.

However, from what you said, the employee works with paints and such and that may then affect breathing in combination with the asthma. But even if that is the case, you may still not be required to provide a respirator under ADA (you may if you wish to do so), even if the employee wants one and even if the treating practitioner recommends it. There could be other accommodations that would allow th eemplyee to perform the essential duties of the job. Changing job duties for example, where paint is not involved may be one. Other types of breathing related devices, such as maks, may be sufficient. You would have to see what works and what doesn't. That's part of the interative process. The Job Accommodation Network in West Virginia, which operates under the auspices of the US Government and West Virginia University, and is on the internet, can provide a slew of information of possible accommodation that may work. So, don't automatically assume you have to provide a respirator, or any other specific accommodation, until you assessed their efficacy. You just need to provide an accommodation that is effective. Providing the treating practitioner with information about the job duties and the physical, mental and environmental demands of the job may get you a good incidation of what you can go with besides a respirator (assuming the doctor will be open on the issue).

SMace

Hatchetman, thank for your time and wealth of information. What I asked above is, would it be reasonable to have her go to our company doctor to evaluate her condition, see if we can provide reasonable accom., or if she can even work in our environment. Her new FMLA papers state that anything under the sun can trigger her asthma and this has shown to be true. She does not work with chemicals or paints. Someone could be painting or cleaning hundreds of feet away and she has a reaction and must go home. She is also about to run out of FMLA, so this is where it becomes a problem and really I think starts to focus on the issue of providing additional leave as a reasonable accom. as well as if we can reasonably accom. the atmosphere at all. By the way, we have only allowed additional leave beyond FMLA in very limited, finite conditions.

SMace

Don, I appreciate your insight and not letting a dog lie. This procedure was in place prior to my beginning employment and I'm sure as I can be that this has been run by our labor attorney. We have a health questionnaire that basically asks (post-offer) if they can perform their job. If they answer yes (the form also states that if they give false answers it will be grounds for immediate termination) to any questions we send them to the company doctor with a job description/physical demands analysis and the doctor determines if they can perform the job. If they can't (don't believe this has ever happened) we would begina reasonable accom. discussion. I can understand your slippery slope comment, but what law would we be violating? As I see it we are not discriminating against disabled people, because some that answer yes are not disabled and some disabled people would not necessarily answer yes. What we are merely trying to do is assure that the person can perform the physical requirements of the position, for their safety and their co-worker's safety.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-03 AT 06:12PM (CST)[/font][p]I'm not a lawyer so I can't give you advice on what specific legal ramifications your policy might have. If you are a government contractor subject to being required to have a drug free workplace policy and you have no procedure in place for that, there's one you would be violating.

If your history over time shows that of the past 10 terminations, all of them happened magically to be among the group of selective self-identifiers, that's another one I would not want to explain away by saying "Hey, I inherited this policy".

It also seems clear to me that any forum where you are challenged might call this selective policy into question. It's just one I've never heard of and strikes me as totally ill-thought-out. We might hang around on this corner awhile and see if Uncle Steve Mc and Cousin Gillian2 have remarks. They tend to see clearly periodically.

(edit) My early ADA education, as I recall it, indicated that it is a violation of the ADA to ask questions of applicants OR EMPLOYEES that might tend to illicit information that would identify a disability, or to require them to make certain health statements that should only be asked in a medical examination by a medical practitioner. Does not your questionnaire do that?

Balloonman

Interesting thread. I would terminate once FMLA runs out...........all of this treatment has indicated that it is not work related until now. If she wants to file a WC claim I would submit one, inform the person you work with the you EXPECT this to be denied. Explain fully the situation.
This person may or may not have a disability, but I always look at it just because you can't work here, does mean you can't work.
I had asthma growing up (no more) my daughter has it (hope she outgrows it) so I am not as heartless as I sound. There is lots of treatment. A person with severe asthma most likely cannot wear a respirator.
My $0.02 worth.
DJ The Balloonman

ssims

I agree with Ballonman, I would not file a WC claim after she has already had it addressed as a personal issue. People with asthma can do a lot of jobs, I don't believe they would be considered disabled. I would be careful about not hiring someone because they don't pass their physical, you might be "perceiving them as having a disability", even if the doctor states "that with a reasonable degree of certainty she will reinjure herself".

Don D

When we pay for a pre-employment physical, we are paying the physician to reach a determination, based on his knowledge of our jobs, as to whether or not the individual can perform the job tasks. If the physician does not 'qualify' the individual for employment, that's the end of the drill, unless there might be an ADA issue to explore. Being careful about not hiring doesn't enter the picture with pre-employment physicals unless it's a grey issue in the qualification. If we go ahead and hire people who 'fail' not only have we totally wasted the money we spent on the physical, but we have also potentially bought ourselves a comp issue.

Hatchetman

SMace, go aheaBased on what yo've posted then, go ahead and have the emplyeee medically examined by your occupational physicians to see if she is able to pefrom the duties of the job without undue risk to herself or others. It may come back that she can but would need reasonable accommodation because of her asthma. That would put confirm the ADA category. From what you posted above, that anything can cause her breathing problems seems to indicate a significant impairment in breathing (I assume you are basing your statement on an earlier doctor's assessment about the asthma) and that you are already regarding her as disabled.

SMace

How are we regarding her as disabled? She has intermittent FMLA papers and we allow her to leave when she reacts to a trigger. Her initial FMLA certification defined her triggers as paint and chemical fumes. Her most recent papers identify anything as a trigger including allergies. She is about to run out of FMLA and has questioned whether it would be covered under WC.

On a second note our labor attorney's are reviewing our psot offer physical policy. I'll keep you updated.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 10-13-03 AT 12:57PM (CST)[/font][p]You said the original doctor's statement related to paint and fumes. But now "she seems to be out for anything" because of her underlying medical condition and the company is accommodating those absences as part of the FMLA leave that result from the paint fumes.

I think you are regarding her as disabled but you certainly still go through the interactive process and make the ADA-disability determination.