ADA Imediate Response Needed

C Wilson

We have a manager who pulled a tendon in her leg while walking up the path to work. She didn't twist her ankle or anything. The injury was caused by walking up an incline. That was 5 weeks ago. She has returned to work in a walking cast. However, the supervisor has made the statement if she does not obtain a full release from her doctor. She will be give an hourly position which is making less money than she is making now and her position given to someone else. As far as the job description goes she could do her current job with a reasonable accomodation.

I know this is a sticky situation and I would like your input.

System

I would re-think whether this is an ADA issue. It sounds more like workers' comp. Usually an injury like a broken arm is not treated as a disability under the ADA--though of course check your state statute to be sure it doesn't cover a wider range of disabilities than the federal law.

Did the employee claim workers' comp? If so, tread with extreme caution. Moving an employee to a lower-paying position and giving her job away could sound an awfully lot like retaliation, particularly in the wake of the Supreme Court's ruling in Burlington (yes, that was Title VII, but the principle may well transfer to other areas of the law; do you want to be the test case?).

Was the employee out on FMLA? again, if so, be very careful. You could be setting yourself up for a retaliation claim.

Your best course might be to educate the supervisor on the downside of retaliation claims, if workers' comp and/or FMLA are applicable here. Surely the supervisor needs someone else to sign off on a decision to terminate? Whoever else needs to sign off should be informed of the legal risks as well.

HTH.
Jennifer Alvey, Esq.
Group Publisher, Workers' Comp and In-house Counsel products

bcolton

The first question I ahve, and it is not clear from your question, is what kind of clearance did she have that allowed her to return to work. Did the Doctor put any restrictions on her or is it the supervisor who is putting restrictions on her.

We routinely use the FMLA certification of physician form and require that of all employees before they return to work. We do not allow an employee to return without medical certification and that allows us to determine ehther or not the employee can perform the essential functions.

without a doctor's note giving some additional information, I believe that this supervisor is heading you into a legal quagmire.

drehil

There are too many issues here to answer with just one response.
1. I don't see this as an ADA issue-has she been deemed disabled?
2. Does your employees fall under FLMA protection? If so, you have a whole other issue.

To much open ground here.