Restriction Certification

LindaS

We are a unionized, manufacturing facility and have a number of employees who have long-term medical issues. As a self-insured company we have accomodated these "restrictions" without requiring updated medical certifications. Some of the medical restrictions date back 12 years without any updates. This situation has snowballed and both employees(ones without medical issues) and the union have complained that employees are picking and choosing what they do and using these medical issues as a reason not to have to do jobs they don't want to. The union requested, and we agreed, to require all employees with long-term or permanent restrictions to have updated paperwork on file. As you can imagine, this went over like a lead balloon and these employees are very upset.

I just spoke with one employee who informed me that she may not get her information updated (last updated in 1998) and will simply "work with the supervisor" to accomodate her. This is exactly the problem we are trying to address - having supervisors "accomodate" employees without having medical certification regarding what an employee can and cannot do.

Any suggestions on how to handle this?

Hatchetman

Have you been treating these individuals as disabled or are you just giving accommodations merely because they requested it however long ago and provided something to support it?

Unfortunately, ADA may put a crimp in your plan if you have incorrectly regarded the individuals as disabled and therefore allowed the ongoing accommodations; or if your records have documented a disability that would still fall under ADA now. You may still have to regard or treat them as disabled.

Even if you did provide an accommodation, it does not necessarly mean that you thought the employee was disabled under ADA terms (having a medical condition that significantly impairs a major life activity). This determination on whether your actions over the years constitutes "regarding th eemplyee as having a disability under ADA" has to be individually assessed based upon the specific facts and circumstances of the accommodation and the employee.
Hopefully, your company didn't make any adverse emplyment decisions regarding the particular employees that could be linked to the medical condition (real or not).

However, you certainly have a right under ADA, if you have regarded them as disabled, to evaluate the effectiveness of the accommodation and whether it is still needed or not (including possibly replacing it with another accommodation) given the amount of time that has elapsed since they were first put in place.

You should discuss and develop a plan with legal advisor familiar with ADA.

Firstly, instruct all supervisors that they may NOT make new reasonable accommodations, for anyone, without discussing the issue with HR.

Then review all the files of the the emplyees who have had accommodations for the time period. Find out exactly what evidence there is to warrant the accommodation.

Then review the performance and other job related issues with the supervisors and determine the need for the accommodation at this point.

Then meet with your legal advisor.

And from that develop a plan on which employees have proper documentation of the ADA disability to establish the reasonable accommodation, which accommodations of those employees are still effective; which employees will need to have update medical information to justify continued accommdation; which emplyees were inappropriately considered disabled when there was no evidence for such, and what now needs to be done about them.

I think if you take the approach that you're evaluating the appropriateness and effectiveness of the accommodation after so many years of being in place, you'll be able to deal with the issue of whether or not you treated or regarded them as disabled over the past 12 years, especially if you didn't have proper medical information to support the accommodation.

Just my $1.28 worth (inflation over the past 200 years).

LindaS

I have only been with this company for less than one year and from my observations, these employees have not been treated as "disabled" but rather that they cannot do a certain portion of their job. This inability has been accomodated and 3/4 of them do have some sort of medical documentation backing them up but it is old. We, as the employer, are not making the decision that they cannot do something, it is the employee informing the supervisor that they are unable to do something which is where the problem stems from...

These employees are "picking and choosing" what they can and cannot do and the supervisors have been allowing this. The approach I took with these employees is that we, as a company, are requesting updated medical information regarding long-term medical issues due to changes in medical conditions, medications, etc.. I have tried going at it that we are only trying to protect the employee and ensure they are not being asked to do anything that may harm them. We are not looking at terminating anyone - this company bends over backwards for their employees - but we want (as does the union) to make sure job assignments are given fairly and people are treated fairly.

Some of these employees simply feel that they do not have to get this information updated and that the supervisor will continue to accomodate them. The scary thing is that I think they are correct. I know this is a bigger issue than just the medical certifications but am unsure how to proceed.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 03-12-03 AT 11:11AM (CST)[/font][p]Stick to your guns, union or no union. You are within your rights to require certain information from the employee if their request is for some sort of workrule or attendance accomodation. Tell them you must have information from them if you are to make a judgement on their request. And tell them the information needs to be brought current and maintained current on a monthly or quarterly basis. Accommodating a request in the past does not necessarily equate to 'regarded as disabled'. It probably was a system based on poor judgement calls and weak documentation that you inherited.

edit: I recommend you advise the supervisors that accomodations of any sort, medical or otherwise, are totally out of their hands and will be decided by Human Resources. Supervisors do not typically have the training or experience to deal appropriately with such issues in today's environment.