ADA/FMLA/Workers Comp Question

Kemp

I have an employee who has worked with our company for several years. This employee had worked for another company many years ago where he lost his right hand in an accident. He was originally hired to pick orders in our warehouse. After a couple of years he was transferred to our manufacturing division and did not have any problems performing the duties of the job.
A few months ago he had to have surgery on his left shoulder (workers comp). He is having a very difficult and slow recovery. The surgeon has been very clear that the damage to his shoulder has been caused, at least in part, by him doing this job with only one working arm.

My question is this..
He has exhausted all FMLA available to him and has no return to work date in sight. He is a good employee and in no way do we believe he is trying to "work the system". We normally terminate employment when FMLA is exhausted. Would this one somehow fall under ADA because of his existing disability causing the injury?

I'm confused.

Don D

ADA coverage/protection extends to those who are "qualified individuals with a disability". A qualified individual is one who can do the essential functions of the job with or without a reasonable accommodation. A disability is that which limits one or more major life activities.

Sounds to me as if is probably protected by the ADA. He can do the job, he has proven that. He probably needs some accommodation even though you may not have accommodated him in the past. He needs it now, I think.

One of the major life activities is 'working'. His loss of one hand is a condition that substantially limits the life activity of working.

It's hard for me to imagine that he is not protected. BUT, it is not a reasonable accommodation to hold a position open indefinitely with no idea of a return date. I would work on that angle with his physician.

SMace

I will expound on what Don said, which is good advice. I also cannot imagine that he is not a qualified disabled person. If the doc says he needs another month, I think that would fall under a reasonable accomodation depending on your budget, financial stability, size etc. If he needs another 12 months that may not. You need to be able to show why it's not reasonable if you have to. Just because you extend the leave for him does not mean you have to do it for others that are not qualified disabled. Just be able to defend any decision with factual information. A call to an attorney would be a good idea. You don't want to mess this one up. Good luck.

HRinFL

I am a new Forumite and new to the Newsletter. I work for a large retail complany in FL which divides the many different functions of HR into separate sub-departments. I deal primarily with employment law (i.e. charges, litigation, etc.). I look forward to gaining valuable insight from the forum and reading the responses of other HR professionals.

I see the above situation as not necessarily an ADA issue, while there definitely appears to be overtones of the ee having a "qualified disability," but since the Dr. indicated that performing the duties the ee was assigned with only one arm contributed to his new compensable injury, I think the ee is qualified for W/C protection. If your company has light duty work that the ee can perform inside of his or her restrictions, offer that. If the ee cannot perform any work, I recommend placing the ee on a W/C leave, or whatever is applicable for your state. I think since the Dr. has indicated that the nature of the work the ee performs is a contributing factor, to terminate the ee opens the door for a W/C retaliation claim.

SMace

Welcome to the forum. You bring up a good point, and I'll bring up a couple of other points. I look forward to being enlightened if that is the case. First W/C is covered under state law and some states have retaliation protection and others do not. A quick review of the TN statutes show that you can sue on a civil basis for retaliation. I believe, however, that W/C does not trump clearly established and followed policies regarding medical leave. Just because they are on W/C doesn't mean you have to (and you shouldn't) throw your policies out the window.

ADA may trump leave policies if it is a reasonable accomodation to extend the leave.

HRinFL

I agree. Having a clear and well distributed policy that is consistently followed is the strongest argument an employer has. In FL, an associate that is perceived/known to have suffered a W/C injury is entitled to protection (PLA). They have up to 26 weeks of leave, or up to 180 days of transitional duty available to them. Once those thresholds are reached, the employer is free to follow its policy. Of course, the key to combat any retaliation case is solid documentation and strong comparables (what past decisions were made with similarly situated ees).

In the case of my employer, we grant up to 52 weeks of leave (if they cannot work) or 180 days of transitional duty (if restrictions permit the ee the work). If the ee cannot perform the essential functions of his or her job, but can perform the essential duties of another position, it is offered. If accepted, pay, etc. is adjusted to reflect the ee's new position. If s/he cannot perform the essential duties of any position available, we offer some vocational training through our insurance carrier to help them find new employment. But they are administratively separated from my company. The entire process is documented to make sure that the company is protected from any liability.