ADA

dpantaloni · October 2001

If an employee was WC and it was denied because it was found to be a degenerative disc disease do I need to keep this employee as a light duty person if I need the position to be regular duty?

Down_the_Middle · October 2001

If the illness is not compensable under w/comp and you don't have a light duty program for non-w/comp illnesses, then be mindful of the accommodation requirement under ADA. Is the disc disease a qualifying disability? If so, can you reasonably accommodate so the employee can perform the essential functions of the job?? These are important questions to answer b/4 you de-employ this person becuz you want someone to perform all regular duties of the job.

Margaret Morford · October 2001

Degenerative disc disease and arthritis are the most common disability that the EEOC sees when cases are filed. It is very definitely considered a disability. DDD is different from a simple hurt back.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

bsa · October 2001

Yup, you're caught in the "triangle." Many an employer has gotten lost in this triangle! Ask his doctor, then ask yourself -- Is he disabled and can you reasonably accomodate his disability? Is/was he qualified for FMLA, has he reached the end of that? What do your policies say?

If this were me, I would ask the WC doctor for medical certification for disability clarification. While I was waiting for that to come back, I would let the employee know that his work status is (suspended, loa, fmla) pending the outcome. I wouldn't want to continue a partial duty assignment for an extended period of time beyond what you have already allowed, because then it becomes unreasonable not to continue it.?

Gar · October 2001

[font size="1" color="#FF0000"]LAST EDITED ON 11-01-01 AT 01:37PM (CST)[/font][p]We had a very similar situation in another HR assignment I was on. The guy was the leadman on the loading dock and he had the same condition. He also had a problem getting along with people. As my granddaddy use to say, "he was a right ornary cuss." First we considered accommodating the disability with a mechanical devise. He didn't give that an opportunity work. We reorganized the job so he would only need to perform its essential or primary functions. He complained about that. We looked at other jobs he was qualified to perform that accommodated the disability. The only job available was on a demotion and he didn't want that. We then considered a voluntary job swap with other employees. No takers. He then demanded that we create a job for him. We didn't. He demanded a promotion into management. We didn't do that either. Ultimately, we fired him and he filed an ADA claim with the EEOC. We won. Hope this helps.

Theresa Gegen TX · October 2001

I think Gar's answer is great. As an employer, you need to go through all the steps in regards to the ADA. Just because the employee has degenerative disc disease does not mean he has a disability (it depends on how the condition effects him -- I've had cases where the DDD was a disability, and one I took to the 5th Circuit, where the court said it wasn't a disability). So its that good old individual analysis again.

But the safest route you can take is to assume that the condition is a disability (this is not regarding him as disabled -- so long as you respond based on medical facts, and do not sterotype him), and that the company must reasonably accomodate his limitations. Therefore, you will need the medical facts from his doctor. By this I mean that you need to get his doctor to give you the specific limitations that arise from his condition and how they affect his ability to do the job.

I had one case where the employee had this condition (DDD) and had lifting limitations (could not lift 50 lbs frequently) but his job did not require him to do so. So no accomodation was needed. You need to engage the employee in this interactive process. For example, you might want to ask him what type of accomodation he thinks would work. The company does not have to give the employee the specific accomodation he requests and does not have to create a job for the employee. But the company does have to try to accommodate if possible.

Good Luck!
Theresa Gegen
Editor -- Texas Employement Law Letter

WD · November 2001

I don't know if this has been questioned or not but did the employee have previous problems in the area(s) of the degenerative disk(s) before the injury? Or did the injury cause exacerbation of the disk(s)? If most of the employee's problems are a result of the injury, it may actually be worker's compensation. Some people have mild degenerative disks and have no problems until an injury of some sorts occurs (usually what is called a "twisting" injury). Most people have degenerative disks at some point, but they don't always become painful. If the employee had previously problems with DDD, and you are sure it's not worker's comp., and you ordinarily would not create a light duty position, I don't think you would be required to do so now. We have a policy that all available light duty tasks are reserved only for those on worker's comp. This helps us to be consistent when it comes to light duty work.
I hope this helps!

Margaret Morford · November 2001

WD is right to limit light duty to WC injuries, but don't forget that you may need to make a reasonable accomodation for a disability under ADA.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

ADA

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