ADA - Reassignment

ADA is not my speciality so please help!

My organization has an individual that was hired to be a physician assistant for general surgery. This includes assisting in surgical procedures, on-call hours, and rounds among other various tasks. She has not been able to perform those duties for over a year now, but no formal documentation had been received until recent.

Her restrictions indicate that she can not perform any surgical assists that last more than 1 hour and that no on-call or rounds can be performed. There are next to no procedures that are under a hour so this department has been allowing her to do mainly administrative duties (no surgery, no on-call, no rounds)since this restriction came to us. She has not been performing a third of her original position.

Of course, now the director is indicating there are performance issues, but nothing has been documented or even communicated to her.

They want to do something with her because they need a PA that can take on the surgical, on-call and other duties. However, the department can not get another position approved. She has been receiving surgery pay in her PA position this entire time which is well above what a normal PA would be getting due to the nature of the duties. Her director would ideally like to terminate her. Other than hiring an additional body there is no other way to accomodate her restrictions in this department.

I want to recommend moving her to another permanent PA position which will accomodate her restrictions. This position does pay less than what she has been making, but it will allow her the time she needs to be off of her feet and does not require her to assist in surgery. She is qualified for the regular PA position and all other vacant positions in her salary bracket require standing, on-call, rounds, and surgerical assists.

In addition, are we going to be in hot water because they have been accomodating this schedule for a year now and have all of a sudden changed there minds?

Any help you can offer would be much appreciated! ADA makes my head spin!

Comments

  • 5 Comments sorted by Votes Date Added
  • Regarding the question about changing now after all this time, especially when there was no documentation of a disability nor any effort along a formal determination of reasonable accommodation...yes. It cold be argued that after a year, her job is now what is is actually doing. If there are other PA positions that don't require her to perform the duties that are prohibited by her medical condition that only goes to establish that her duties whatever they are, fit right in, even though she hasn;'t been formally re-assinged. You should consult legal counsel on this particular issue. It could be tricky

    Regarding formally re-assigning her...yes. A reasonable accommodation under ADA may be re-assignment fto antoher position in which she can perform the essential duties. And the position may be a lower level position, with lower pay. BUT, that type of accommodaiton is usually the last to be tried. In other words, oits an accommoditon of last resort when all other possible accommodations aren't reasonable and effective, and would result in undue hardship.
  • [font size="1" color="#FF0000"]LAST EDITED ON 10-31-03 AT 04:47PM (CST)[/font][p]I see nothing in your post that leads me to think one way or the other about ADA in this case. It could be very simple for your organization, through documentation and written attestations to support the fact that for some time you have accommodated her for whatever reason but that you no longer can. The word accommodation is not restricted to instances of ADA, so I wouldn't jump to that conclusion. Her doctor has stated she cannot perform functions of a certain length; however, there is still no indication that a disability is involved. I would thoroughly establish, with the aid of others, what the duties will be for this job moving forward. Then explain it to her in detail and ask the normal question; Can you perform these duties with or without accommodation? If she suggests accommodation within the framework of the job as you define it, then deal with that as a possibility, not a certainty, and explore it. If she cannot, she cannot and will either have to be reassigned or terminated. Your post indicates that "no formal documentation has existed until now" that supports her inability to perform. So, explore it from this point forward in light of today's expectations of the position. We are at liberty to redefine, reemphasize or alter job expectations/descriptions as they need not be constant, even in California. You cannot be guilty of violating ADA if ADA has never been established or pre-supposed.
  • The employee did apply for A Reasonable Accomodation for no-call, rounds, and short surgical assists. Her diagnosis is Plantar Fasciitis which I understand as being plantar warts? As I understand, a diagnosis is considered a disability if it limits a life activity. Is being able to stand, walk, etc. considered a life activity? Or am I completely on the wrong track?

    Thank you!

    Kris
  • What you need from the doctor is a statment not only describing the medical condition but how it affects a major life activity in comparison to the average emplyee and given the essential duties of her job, how it affects her ability to perform those duties. Also, find out if the employee is taking any remedial measures that lessen the impact of the condition. The assessment of the impair would then be made in light of the mitigating or remedial measures.

    I guess if the condition is severe enough it may impair to a significant degree her ability to stand, walk etc., which are considered to be major life activities. But get the medical information for that and how it relates to her job.


  • While, in my opinion, her medical issue doesn't appear to be ADA qualifying, recent court cases in the state of WI have given rise to the significant difference between the ADA and WFEA. Before taking any actions regarding this employee, talk to your labor attorney for some advice.
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