H - E - L - P!!!!

MsLady · March 2003

[font size="1" color="#FF0000"]LAST EDITED ON 03-10-03 AT 01:46PM (CST)[/font][p]I have an EE that has a bad back (this is a previous condition) He gave us a note from his doctor that said he can not lift more then 20lbs. indefinitely. He was in maintence, and said that the work was getting to be to much for him. His manager then moved him from maintence to janitorial work. The EE is now saying that the janitorial work is getting to be to much work for him now and wants to go back to his previous position in maintence. His manager sent him to the doctor to get a note that state what he can and cannot do. The note reads as follows:

"Has recovered from previous back trouble, is able to return to full previous work/job description."

The maintence position does require alot of lifting and is a very busy department.

What issues should I be looking out for with this? Would we be able to terminate this employee because of his inabilaty to work?

Please let me know if I should post this in a different area. As always, thank you for your time and consideration.

Kari Swenson

Theresa Gegen TX · March 2003

You need to get with a labor attorney before taking any adverse action against the employee.

According to the Doctor's note, he is fully able to do the job, so I don't see how you can fire him for not being able to do the job. (Sounds like he would have a good claim that you regarded him as disabled).

Its unclear whether the doctor even knows what the maintenance job entails or whether there are any vacancies in maintence. These facts should be flushed out with your labor attorney.

Good Luck!

Don D · March 2003

I think this question must have been dual-posted on another thread. On that one I recommended you schedule this ee immediately for a functional capacities evaluation. I don't think you'll find that such an action is considered adverse action, and I believe you'll find that your attorney will suggest the same. You have anough basis on which to proceed with the conflicting medical opinions from the same physician, both of which cannot be right with him not having reviewed the job demands material, and you have at least two requests for transfer and self-evaluations from the ee. How do you spell workers' comp a'comin'?

Balloonman · March 2003

In the future, when an employee shows up with a note that limits them from performing the essential functions of the job for a non work related injury do not automatically accomodate the restrictions. He was hired as a maintenance worker, you are creating a nightmare for yourself. If the doctor say they cannot do, tell them you cannot let them work until this is resolved (I would not let him work right now until a decision was reached.).
I would send the doctor a job description outlining he work requirements. If the doctor says he cannot do them, and the employee cannot identify a way to perform the essential functions with or without accomodation I let them go. Typically if they are not truely hurt the doctor gives you the documentation that you need to let them go.
I have done this before, and to date have not had issues with ADA. The supreme court also agreed that just because they cannot do that job does not mean they are disabled.
My $0.02 worth.
DJ The Balloonman

H - E - L - P!!!!

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