Can we get out of the hot water?

Melynn · April 2001

I recently had a supervisor regard someone has being disabled and basically told the employee that they were not eligible for a position even if they were released from work comp w/o restrictions!!!!! Besides firing the supervisor,how can I get us out of hot water. Can I take back what the supervisor said? Help!

Big Fred · April 2001

If the supervisor was way off base
and such comments create legal exposure,
intervening with a correct course of
action may not eliminate your delimma
but it sure would show an active good
faith effort to correct the supervisor's
error. Also, past experiance would
indicate that the employee is in search
of some good news. Hopefully, you will
deliver such news prior to the
employee's council.

Theresa Gegen TX · April 2001

You don't have to fire the supervisor. But you should take corrective action -- perhaps written counseling and training on how to manage medical issues in the workplace (ADA, FMLA, worker's comp.).

Also, the employee needs to be given correct information about his or her ability to return to work.

Good Luck!

TheCol · April 2001

I agree with the preceding. Would add that the original supervisor, now fully trained, I'm sure, goes to the employee with "Boy am I dumb, I said .... which was totally wrong. Here's what's right ... " and then give you feedback on the meeting. Now, you go to the employee and say "I hope Ralph was able to give you the correct information ..." That will work.

Melynn · April 2001

Thanks everybody for your responses. I needed to act quickly. I will let you all know how it turns out.

John Phillips TN · April 2001

Actually, it's unclear under the way the US Supreme Court has interpreted the
ADA that the employee has been regarded as having a disability under the ADA.
He may have been regarded as being unable to do the job in question, but in
order for an employee to be regarded as unable to perform the major life
activity of working (which it seems we are talking about here), the employee
must be regarded as being unable to perform a broad class of jobs. However,
what the supervisor did is still not good and could lead to a lawsuit. Even if
you could win it, it would still be problematic. If a doctor has released
someone to do a job, you should go with what the doctor says. If you think the
doctor is wrong, then get another opinion. A supervisor cannot decide on his or
her own that an employee cannot do a job with a contrary doctor's opinion
staring them in the face. I would reprimand the supervisor, take back what was
said and put the employee back to work. If you would like to talk about this
further, give me a call.

John Phillips
Tennessee Employment Law Letter
423/785-8325

DCTwo · May 2001

I agree with the preceding message. I have counseled one further step on a similar incident, sensitivity training for not only that supervisor, but for all supervision. I wouldn't stop with ADA but also for EEO. There are several sites on the web which have this type of training. I'm certain our hosts may know of someone in this realm. "An ounce of prevention is worth a pound of cure." Sorry for the homily, but it is apt.

Can we get out of the hot water?

Comments