ADA employee

marina

Hallo, I have a crucial situation here and I would like to see if someone can advise me. I am in NC and I have an employee who had a heart attack with consequent quadruple by pass surgery. It happened 6 months ago. Now he is ready to come back, however his position( with the title) has been terminated, but HE has not being terminated. We can offer him a different position, that he says he cannot accept because some lifting is envolved, which would be dangerous for him.Can we terminate him without incurring into any violation; therefore, a risk to be sued? Can someone please help me? E-mail is [email]mprather@villagesurgical.com[/email]. Thank you.
Marina Prather/ Office Manager/Village Surgical Assoc.

Don D

Marina, Hello. I'm recommending to the Forum Administrator that they move this post over to the regular section for HR and Legal posts. They will advise you when it has been moved. It will get more replies there.

marina

Thank you very much. Marina

TN HR

You've got a tiger by the tail. Given the type and severity of the surgery, I am going to speculate that the gentleman is over 40. I hope you can see where I'm going with this.

While it may very well be a non-discriminatory business decision, on it's face it appears to be a cleverly crafted machination on your part while this guy was out having surgery.

Get legal counsel involved immediately. You will probably get varying opinions on this forum, some will even quote "case law" and "Google" searches. Spare yourself the headache and bring in the cavalry.

Keep us posted and good luck.

Gene

marina

Thank you very much. I shall follow your advise. Marina

Don D

In addition to what Gene said, you would be wise to have whoever decided to eliminate the position sit down and write a detailed explanation for that decision. The more detail the better, including dates of discussions or staff meetings in which it was discussed, who participated in the decision and, most importantly, what the business decision was based on. Also the impact of doing it vs not doing it. These are some of the first things your attorney will ask you and certainly the questions the plaintiff's attorney will ask, if you are ever faced with that.

As a plan 'B' I would also scramble fast to identify or 'mentally create' another position for him that almost mirrors the one he left. That may be your least expensive maneuver. But, let your attorney advise you on which way to go with it.

marina

Thanks a lot. Shall do. Marina

HRinFL

I agree with The Don and Gene. I would also look at whether there are any other positions in your facility the ee could perform with or without a reasonable accommodation. Document your review of positions and whether the ees restrictions would create a harship for your business. Your attorney may want to have this information as well.

A few questions. What was the reason for the ee's job being terminated? When you offered the other position, did you make the offer in writing? Did you discuss the offered position with the ee to see if there was a reasonable accommodation for the lifting requirement? Cover your bases so that you can support your decision in front of a jury.

marina

The answer to your questions is no. Not very good!!! Thank you for the advise. Marina