Right to Ask for Medical Evaluation

CPK · February 2008

An employee came to work one day not able to perform the essential functions of the job without any prior notice of injury. We learned the degnerated injury occurred while in the military. So, no WC and the employee knows this. He provided us with restrictions (no lifting more than 20 lbs, no extended periods of standing, sitting, walking) for a indefinite period of time. The nurse practionior did not have a job description at the time. The employee wants to have this restriction in place for 1 - 3 years or until he can receive full disability from the military. Can we, the ER, ask the employee to have a medical evaluation based on the job description? Can we require a physician to conduct the medical evaluation?

Also, is this employee covered under the ADA? I believe the employee is, but just checking.

Thank you very much for your help.
KB

stilldazed · February 2008

How long has this worker been with you? In a simple answer to your question, a better option might be to direct the worker to take a copy of the job description (with physical requirements for the job) to his physician so the physician can review and assess on a line-by-line basis whether the worker can perform the duties. And I think that accomodating because the worker ask you help buy him some time to qualify for TD is the wrong reason to make an accomodation. I'll think you and your organization will live to regret that decision.

For a longer version of the answer:

My thought is that there is a process that should have occurred. Whether it did or didn't will drive your next step.

What ideally would have occurred:
1. Job offer to worker, and post-hire physical based on expected job duties.
2. Worker passed physical and reports to work, having fully disclosed prior medical issues.
3. Worker now has a degeneration of some sort and is unable to perform job duties on a regular basis, made a request (with medical certification) for job modification.
4. Essential physical duties of job are clearly identified, and you assess whether the modifications can or should be made.

Sometimes the post-hire physical doesn't happen, which complicates the process some, but still leaves you good options.

If the worker is new, confirm whether there was full disclosure of the prior medical condition. You may have a case of misrepresentation if the job duties were clearly communicated and the worker 'never really could' perform, especially if the worker is new to the organization.

If that is not the case, you may have a good worker who did or did not fully disclose, but now has physical deterioration and can 'no longer' perform the essential physical duties of the job. If that is the case, your policy should guide you on whether you can or should accomodate. The presence of a medical stmt does not automatically move the physical condition into an ADA review. For it to be ADA, the physical challenge must be of a life altering nature--can not dress self, must have mobility assistance, limited or no use of one or both arms or legs, etc.

If your situation is one of deterioration, it is best to make a good assessment of whether accomodation is an option for you, and making an accomodation is not always good for the organization.

As for contacting the physician, you should solicit input from the physician through your worker. A safe way to do so would be to provide a list of job duties with physical requirements for the worker, ask the worker to present the list to the physician, and return the response to you. In the meantime, depending on the severity of the employee's condition, you may or may not need to take the employee out of the job until the physician's response is available. Depending on the physician's response, you and the employee should also understand that the worker's career as you know it today may be over.

I would say that accomodating for the sake of buying the worker time to 'qualify for' disabillity income is unreasonable. Yes, it is a nice thing to do, but it is a serious precedent for your organization and may be something your organization cannot afford to do.

best wishes.

CPK · February 2008

Thank you very much for your time and response. While I am knowledgeable in ADA; I am not comfortablly familar with it. I concur with much of your response. Other information was insightful and new.

The employee has been with us for two years. When we provided him the job description and asked him to have a physician review it, the employee initially refused (insubornation). Then the employee claims some items on the JD is not applicable to the job, thus no effort to go to the physcian. You know the deal and where the employee is going.....

We have disciplined the employee for this behavior and have gotten the employee's attention. Well maybe. We have since rec'd a typed letter, not on any letterhead, with restrictions based on the JD, signed by a FNP (family nurse practioner). No time limit was mentioned in the letter which is consistent with the employee's intention of "hanging on".

Our intent for the medical eval is just as much for the employee's safety as it is following policy.

Thanks again for your reply. It was helpful. Have a great day!
KB

stilldazed · February 2008

Thanks, and glad it was helpful. Sounds like you have exactly what you suspected, a representative of the 20% that keeps us busy 80% of the time.

Right to Ask for Medical Evaluation

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