ADA Back Problems

Elizabetharess

We have an ee who has been out for several weeks because she has back problems and her physician has her limiting the amount she can lift and is also limit her range of mobility. Our Job Description has specific requirements in order to perform the job duties. She is newly hired to our company and is not protected by FMLA.
Does back problems ever go under ADA and are we required to keep her if she cannot perform the job duties and we cannot create a new job position? The facility simply does not have any room for a different position.

NeedCoffee

[font size="1" color="#FF0000"]LAST EDITED ON 08-03-07 AT 07:33AM (CST)[/font][br][br]Did her injury happen after hiring? You may need to look at WC before terminating.

If she was injured prior to working for you, did you make the job requirements very clear to her prior to hiring? If she stated she could meet those requirements, I don't think you have any problem terminating. We just did the same thing, the term reason being ee was unable to perform necessary job requirements, no accomodation available.

Elizabetharess

Before she was hired she was given a form that showed the job requirements and the physician said that she was able to perform the job duties. After she was hired her back began to hurt her, it was not WC, and she got a note from her physician that she was restricted to light duty for x amount of days. We could not assign her work related to the restricitions so she is not scheduled to work until she gets a release. On the 6th of August she is seeing the doctor and we are waiting to hear the results.
It looks like we are moving towards termination. She is newly hired.

NaeNae55

Is this an ongoing problem or a temporary thing? I am just wondering if she really has a back problem and tried to get around it, or if she was over-enthusiastic at her new job and over did it. If it is the latter, this will bring her back in check and she will be a good employee. If it is the former, then she should not be in the position in the first place.

Good luck!

Nae

System

Back problems could be covered by the ADA. Things like sitting, standing, walking, working are all major life activities that could be substantially limited by serious and chronic back problems (consider, for example, arthritis, neuropathy, etc.). Of course it depends on how severe the problems they are, whether they are temporary or more permanent in nature, etc., but it's definitely possible.

stilldazed

ADA requires case by case analysis, so disorders of the back that 'significantly limit' a 'major life activity' could be covered by ADA, and then you would only be required to consider an accomodation that is reasonable. Another consideration is whether the employee actually asked for some sort of accomodation, and being absent from work indefinitely from work is not reasonable, even under ADA.

If there was any sort of medical questionnaire or post hire physical, it would be a good idea to revisit those documents and determine whether the worker disclosed a history of back conditions that might preempt an ability to work. Also, look at whether a job description was presented and whether the employee happen to suggest that a back disorder would prevent performance of some or all of the job tasks. You may have a case of misrepresentation.

I had a similar situation a couple of years ago with a dishwasher who passed our initial screenings without any physical complaints or issues. Within a couple of months after hire, the dishwasher requested assistance in the form of an assistant to handle big pots stating that doing so was too painful on her wrists. We reminded the worker that she accepted a position to wash dishes, saw the job description (which included that pots would be handled), and passed our medical screening without any flags. We suggested that she produce a medical statement if anything new had surfaced, otherwise our expectation was that she could do her job without difficulty. Within days she decided that she could handle the pots after all.

Let us know how things turn out.

Msferra

[font size="1" color="#FF0000"]LAST EDITED ON 10-04-07 AT 06:06AM (CST)[/font][br][br]Something else you might want to consider as well on the front end. A few years ago, at a seminar that I attended on WC, a lawyer said that during the recruiting/hiring process if you give your candidate a copy of the job description, letting them read it and ask "is there any reason that you cannot perform the essential functions of this position?" and if a candidate says, yes, I hurt my back several years ago (or whatever), you can stop the interview and say the company cannot consider you for employment for this position and end the interview.

SMace

IMHO, if you follow this direction you will have violated ADA. The piece of the pie that is missing is exploring a reasonable accomodation that would allow them to perform the essential functions. There may not be one, but you and the propspective employee have to explore the options. If you immediately end the interview you have not.

I'll add that even if the back injury in this situation does not qualify as a disability you have regarded the applicant as disabled because you treated them differently by ending the interview.