Pending Amputation
Don D
9,834 Posts
We have a production worker who had/has cancer in a leg. He has had surgery and has been released to return to work with no restrictions after 12 weeks of FMLA. Excellent worker that we really want to find a way to retain. It's perhaps beside the point that he feels amputation is imminent. We are in a situation now with production that, according to the union contract, allow us to force overtime in seniority order and this worker's name comes up for that overtime. He explains now that his doctor says he is limited to eight hours per day, no overtime. Let me have your thoughts on if and how this might play into ADA. Do you see this as possibly a major life activity restriction that can or should be accommodated although he is fine working eight hours per day, but not beyond? I need the freshness of opinions that are not associated with the situation. thanks.
Comments
Don, I suspect that if the leg is amputated it will fall into significant impairment of a major life activities (standing and walking) UNTIL the prosthesis is made and he learns to use it "almost as good as a natural leg."
You're right on the borderline on this because it is most likely, subject to his recovery from the operation, that he will be significantly impaired with the loss of the leg for only several weeks, only a few months -- most likely less than a year -- until he learns to use the prosthesis. At that point, given the fact that mitigating measures would then be in place and the impairment would not be significant, he probably wouldn't meet the definition of ADA.
The particular problem comes in those weeks that he is learning to use the prosthesis. ADA provides that when an medical condition significntly impairs a major life activty either permanently or long term, the employee may be considered disabled. Temporary conditions do not fall under these criteria. While neither long term nor temporary are defined, court rulings seem to say long term means practically about at least one year. Thus, if the employee is only going to be significantly impaired in standing and walking for a few months -- less than six, maybe -- it doesn't appear that he would qualify under ADA for that time period as being disabled.
I don't believe that is what Congress really wanted to do or say in a situation like this with ADA. Obviously, assuming that the employee is no longer eligible for FMLA and he has no other options available such as state law, like California's "ADA", technically an employer can be a "meanie" (assuming it has no sick leave policy beyond what FMLA provides) and force the issue, claiming that he isn't disabled under ADA and amputation or not -- as long as the prosthesis will be done in a "short time" -- he must be able to perform the essential duties of the job upon recovery from the operation and if he can't, terminate him.
Don, my feeling is to just go ahead and make the temporary accommodation in the overtime issue, let him fully recover and then look at the situation when he is able to return to work and there's a better medical assessment of what he can do when all is said and done with the operation, the recovery and the full ability to use the prosthesis. But of course, consult with your legal advisor as well when considering all this. The right thing to to is address his needs at this point and put the overtime and contract issues second.
By the way, as I recall you're not in California (if you are in a state that has its own ADA law then of course make whatever assessment for reasonable accommodation under the more liberal law to the employee. California's law doesn't require significant impairment and the assessment is made without regard to mitigating measures).
Best to the worker -- it's going to be scary for him until he realizes that he's a cancer survivor and the prosthesis is really not a bar to living a meaningful life.
Good luck.
Keep us posted.
Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]
2nd --- Get documentation for the 8-hour limit. I’m positive you’ve already got this in the works!
Then… “allow” says to me that you have a choice to force or not force the overtime. I don’t think this particular doctor’s restriction would be considered a disability and therefore eligible for accommodation. But as Margaret said, your union would appear very callous if they tried to force this man to work overtime against his doctor’s recommendation. [u]And[/u], some lucky “lower man on the totem pole” will get the opportunity for overtime that might not have happened. Why would the union object?
Finally, would you make the same decision for anyone else in the same or similar circumstances? I think a curmudgeon definitely would!
It’s not necessary to do anything regarding the amputation issue right now. It may not happen and circumstances could change by the time you get there. IMO an amputation would need to be accommodated.