Considering Applicant w/Revealed Back Trouble

DTBRIMRIN

We have an employee who's been affected by a Departmental downsizing and is being considered for a newly-formed position. The new position involves direct patient care and one of the many job functions is to assist with the lifting and transfer of patients from stretchers to the exam table. The employee has expressed concern of her ability to lift due to a herniated disk.

From my neophite understanding of ADA, back problems do not seem to fit inclusion. Is that correct? And, would it hurt anything to offer her reasonable accommodations anyway? ie., back-brace support and/or training on proper lifting techniques?

Lastly, does the company's potential liability outweigh ADA? What if we allowed her to try it anyway, she couldn't handle it and dropped a patient?

Any input is greatly appreciated. Thank you.

System

The vast majority of back conditions aren't ADA disabilities, but serious ones can be.

But even if she's not disabled, the ADA applies to the hiring/rehiring process. Since she told you about her back, you can require her to get a doctor's certification that she can safely do the job's essential duties. You should give the doc detailed information about these essential duties.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Douglas Neu RI

I agree with James' post, but let me add a couple of thoughts.

Determining whether an individual is covered by the ADA is situation-specific. Just because one person's bad back isn't covered doesn't mean that all bad backs are excluded. As James mentioned in his post, a serious back injury can be covered.

If the applicant is disabled, the ADA protects an individual who can perform the essential functions of the job, with or without reasonable accomodation. It sounds like the key inquiry in this situation is whether the lifting and transfer is an essential function of the job. If not, then a modification of duties can be a reasonable accomodiation. As with whether an individual is disabled within the meaning of the ADA, whether an accomodation is reasonable is situation-specific.

As to your final questions about company liability versus the ADA, if the employee can do the essential functions of the job with or without reasonable accomodation, then ADA prevails unless the accomodation is an undue hardship on the employer. Again, this determination of whether it's an undue hardship is a fact-specific inquiry. In addition, if the employee is a "direct threat" to herself of others, then you might have an out to the ADA. One key in ADA situations, therefore, is not to generalize.

One final thought - don't forget about state law in these situations. Fortunately, the Rhode Island Fair Employment Practices Act (FEPA) largely tracks ADA in what I've described above, but not in all respects.

I hope this helps. Please feel free to email or call me if you want to discuss this further.

Regards,

Douglas B. Neu, Esq.
Editor, Rhode Island Employment Law Letter
Powers, Kinder & Keeney, Inc.
Providence, RI
[email]dneu@pkklaw.com[/email]
(401)454-2000

Theresa Gegen TX

One thought to add to what Doug said: For you to determine that the employee is a direct threat (for example to the patients), you must have specific facts to back it up. A "fear" that the employee might not be able to lift a patient safely because of a back condition, that is not based on some medical evidence about that condition and how it effects that specific employee, will not support a finding that the employee is a direct threat.

Good Luck!!