Concealed information versus ADA

SDDCHR

I have an employee who works in a direct care position with patients who have severe behaviors. During the initial interview, this employee never disclosed the fact that she was previously disabled and had restrictions that wouldn't meet our working conditions as outlined in our job announcement. We have recently asked her to move to another location (she has since met her probationary period)and this prompted her to reapply for another position within the same organization. However, this time she revealed that she could not meet the restrictions as outlined for the position.
So far, she has been lucky with only minor work related injuries. But, if I leave this employee where she is at, she will get hurt. If I try to terminate based on the fact that she concealed information on her application will the ADA look at it as us having already accommodated her for the past 7 months? Unfortunately, there are no other positions that we could put her in to accommodate her.
Do I terminate, leave her where she's at, or complete a fitness for duty evaluation and go from there?

Hatchetman

On what basis are you determining that the employee's medical condition doesn't allow her to perform the duties of the job without undue risk to herself or others? posiiton?

You mention industrial injuries. Are the medical reports on those saying that she is unable to satisfactorily perform the duties of the job without undue risk to herslef or others? Obviously, if she has passed probation and performed her current job satisfactorily and the industrial injuries are such that they don't demonstrate the presence of an undue risk, you're going to be hardpressed to argue she needs to be terminated. You need something more than speculation that she could injure herself, as an undue risk, merely by stayimng on the job. A medical assessment may be required.

Related to the potential of injury to herself, you may want to take a look at the recent Ezachabel v. Chevron case, decided earlier this month by the US Supreme Court (it upheld the right of the emplkyer to consider undue risk to the emplyee as a factor under ADA rather than just undue risk to others). EEOC guidances on this issue will provide more clarification. You can find that material at the EEOC website under Guidances.

You could tkae on the issue of "not fully reporting her medical condition at thie of applicaiton" but I don't know how you would establish that unless you could establish that 1) you asked the question in the job interview "Is there any reason that you could not perform the duties of the job?" and 2) you had asked that question of every candidate; and 3) that she knowlingly and intentionally answered untruthfully not just that she should should have answered "yes" from your point of view. She may have thought that she could really do the job -- and it looks like tshe could have been right, given the number of months she has demonstrated that she could do the job without unde risk to herself (again, is there anything in the industrial injury cases that show otherwise).

Perhaps one of the HR-Hero attorneys can give a better analysis of whether you would possibly have a viable case on this second point. Or certainly consult with your company's legal advisor.