Major life activity? If so, accommodations?

deerom12

I have an employee who has been placed on a lifting restriction (no more than 20 lbs) because of kidney disease. The employee has a dialysis tube in her stomach which administers the meds. Heavy lifting could dislodge the tube. She holds the position of stockroom clerk, and is required to lift boxes/shipments of up to 50 lbs. This is a frequent requirement of the job and is considered "essential". Okay, so, I have the doctor fill out the ADA paperwork and the doctor says that the condition does not substantially limit a major life activity, but reiterates the lifting restriction. I know that lifting is considered a major life activity, but I believe it is questionable as to whether only being able to lift 20 lbs is a substantial limit to a major life activity. There are other impacts of the illness--fatigue, appetite loss, etc...but these are apparently controlled by the ongoing dialysis and would only cause minor issues at work. The employee at this time does not need time off from work, as the dialysis is the type that is self administered.

I'm really not sure what to do...her managers are getting antsy because it is a busy time of year with shipments of textbooks arriving daily. They have had the employee doing non-lifting work in the interim until we better understand if ADA is at play. So, here's my question..would you consider this an ADA qualifying disability? If so, what are some accommodations you'd consider? I don't believe it is reasonable to just have others do the lifting. There are handtrucks and dolleys that are utilized, however, the boxes still need to be lifted onto/off of and placed in various locations. FYI: This is not a large warehouse--it is a stockroom in a bookstore. Any advice would be welcomed!

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 07-23-03 AT 09:19PM (CST)[/font][p]Deerom, I saw your post on SHRM's BB and responded to it.

Your post here adds a new wrinkle that I'd like to address

In reading your SHRM post, I had the impression that the medical condition was directly related to the lifting.

In reading your post here, I see that the employee has a kidney problem requiring dialysis and that one (?) of the impairments is lifting. But if the employee is on dialysis, I suspect that there may be other major life activities that could be significantly impaired.

As I mentioned on the SHRM response, it is most likely the doctor may not know what constitutes a "major life activity." The reality is that there is no set list exhaustive list; there is no EEOC general definition or description of the term in EEOC regulations only a list identifying SOME major life activities; and there is sometimes disagreement between EEOC and the courts. EEOC has indicated outside of the regulations that an individual's ability to control bodily functions is a major life activity.

Yumention that there are other imapirments that seem to exist but you discount them because they don't impair anything at work. But a disability doesn't have to do that. There is no requirement that the medical condition significantly impair the employee's ability to function on the job, although some courts, as I have read about, do sometimes take that approach.

As I said in my response on the SHRM BB, inquire of the doctor again and the employee. I had mentioned to ask the question about how the medical condition specifically impacts the individual and to what degree thinking that perhaps you get a better desciption of the lifting issue. Given the kidney and dialysis issue, besides asking about general impact, include the impact on the genito-urinary tract and how it affects his daily life. That may give you a better idea as to whether the employee is disabled or not under ADA than merely staying with the lifting issue. At least if the doctor doesn't then address that aspect of the medical problem or indicates that there is none, you probably can maintain that there is no ADA disability in view of the response you have already and will most likely get again on lifting.

Gene Labovitz

Theresa Gegen TX

This is a good time to contact your labor attorney. A few hours of the attorney's time is money well spent to avoid future problems. There is a good chance this person is disabled, regardless of what the doctor says -- the doctor probably does not know the legal definition of disability or how the court's interpret the law.

A reasonable accomodation does not require a company to remove essential functions from the job. If lifting 50 lbs is essential, it may be that the person is not qualified for that job. BUT, there may be other ways to accomodate and the company must go through the interactive process with the employee. A good attorney can help you through this process -- the outcome may be termination or accommodation -- but without going through the process you will never know.

Good Luck!