Question:

One of my employees just returned to work after a 4 week medical leave for elbow surgery.  I am concerned that this employee will hurt himself or be unable to do his job as a data entry specialist.  What should I do to protect my business and my employee?

Answer:

There are at least two issues to be aware of in this situation.  One is assessing the employee’s ability to safely perform his job, with or without a reasonable accommodation. The other is to guard against presuming the employee is disabled and unable to perform his job.

California’s Fair Employment and Housing Act (FEHA) applies to employers with 5 or more employees. The FEHA forbids discrimination against individuals who have an actual physical disability or who are regarded, treated, or perceived as though they have or had such a physical disability.

In the recent case of Department of Fair Employment & Housing v. United Parcel Service, the Fair Employment & Housing Commission adjudicated a case of perceived disability.  In the UPS case, an employee suffered a work related knee injury that required two surgeries and subsequent treatment.  The employee took two leaves when she had her surgeries, and she returned to work after her first surgery.  The employee’s doctor submitted periodic reports to UPS stating that the employee had work restrictions, but the employee was performing all of the core functions of her job without any need for accommodation.  UPS decided that the employee was unable to perform her job and it classified her as having a “residual disability.”  She was eventually fired from her job based on UPS’s policy that called for termination of employees who were “absent” from work for more than 12 months.  Although the UPS case was factually and legally complicated, some of the important lessons from the case are:

  • If an employee experiences an illness or injury that may limit his or her ability to perform his or her job, ask the employee to obtain a medical certification from the employee’s health care provider to help you determine if the employee can perform the job.
  • Provide a job description for the employee to take to the health care provider to be evaluated.
  • Do not include items in the job description that are not part of the employee’s job.
  • Do not ask for a diagnosis.
  • Do not presume the employee is disabled.
  • If the employee has work limitations, engage the employee in an interactive conversation about what accommodations can be made to enable the employee to perform his or her job.  Don’t presume nothing can be done.
  • Treat each case individually and evaluate each employee’s performance, limitations, and need for accommodation separately.
  • If you use form letters to administer leave, revise them to apply to the employee’s situation.
  • Do not require an employee to obtain a “full release” to be “100%” able to perform all tasks.
  • Make sure your discrimination and harassment policies comply with California law.

Proceed with caution before regarding an employee as disabled. Talk to the employee and get information about the employee’s job limitations, if any.
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