Difficult job placement

yellowbrickroad

We have an employee who had major replacement surgery in December. He recovered enough to come back to work but not at old job no bending, lifting or sitting for long periods at least for 1 year. We placed him in another position which is not working out. His wife is a director here. Are we under any ADA restrictions or other laws?

pork1

YELLOWBRICKROAD: Welcome to the forum! Was this a FMLA case? Did the physician provide an update physical to document the physical limitations under which you are working this ee's case? Is ee under a light duty or restricted duty format? Is the ee earning the same wages he was receiving prior to going out on a medical condition?

All of the above questions should lead you to a better understanding to answer your own question; however, with standing all of the above, you will come to an understanding of what does the company feel about the potential of the concerned individual, which then tells you whether the company wants to act favorably or negatively toward this performance issue.

If the ee is "NOT WORKING OUT" your choices are to transfer the individual to a position and wage rate that is appropriate to the new position or to send the ee to another physician for a job description physical examination to determine the individual's physical abilities to work in your industry. If medically disqualified, then, the best choice for the individual is to terminate and allow the individual to apply for unemployment and SSI disability. SSA will not even look at the application until the ee has been out of work for 6 months. In the mean time the individual might be allowed to draw a non-charged UE medical disability.

Always remember that once the ee begins to draw the life time disability, the SSA disability retirement becomes a life time benefit. We employers sometimes attempt to stop a rightful medical disability benefit, when it is the right thing to do. If we work hard to retain the ee we are rally hindering the ee's ability to draw SSI.

I hope this one helps, I'm sure other forum brains will come on board with possibly more appropriate words. If you attempt to do "what is right by the individual" and assist the individual, where ever possible, there will most likely not be a concern for ADA issues.

Again welcome and thanks for posting, we have lots of new comers on board and the learning tool, this forum, is for that purpose.

PORK

yellowbrickroad

He was on FMLA, the restrictions are no bending, lifting which were a large part of his job that we transferred him out of. Since then like I said he went to another job which allows him to get up move around as he should, he is not disabled, he can drive, brace is off except at night he does his daily living stuff. We now just have the performance issues. This is a travel business and there have been many costly mistakes for our clients so that is where we are at. The difficult part as I said is the owners of the business have known the director and this gentleman for some time and I see this as the biggest challenge. Anyone else would have been gone by now.

pork1

Then, you certainly should not be concerned about ADA. There has been an accomodation and he is failing in this job due to performance issues and not his medical condition or health.

If he is a "good ole boy", then I recommend you find more important things to do with your time and stay out of the owner's protective nature with this employee. When asked you could express your opinion that the failure of the company is the failure to exercise a consistent discipline system. If they want this ee to become productive in the positive arena then they not you need to administer discipline in a fair and consistent manner.

PORK

Don D

"In the mean time the individual might be allowed to draw a non-charged UE medical disability."

Pork, can you clarify what you mean by that? If you're talking about unemployment insurance, there is no such thing. If you're talking about something else, please clarify.

pork1

Don: The words stand as written! We have had three different employees become medically disqualified and terminated due to medical conditions associated with our industry. They were not ill to the point that they could not work in some other industry, just ours!!! These three were allowed to draw unemployment and the benefits were not charged to our experience rating. Two were diabetics and a third was brain cancer, so your declarification of "there is no such thing" is wrong.

PORK

Don D

No Pork, my friend, you are wrong! The language in the Mississippi law will not allow a claimant to be classified as 'disabled', the wording you used, and draw unemployment insurance. Maybe you intended to word your post differently.

And please inform us why brain cancer or diabetes would disqualify someone from working in the pig business but allow them to work elsewhere. You never cease to amaze me.

And if you want to continue the argument, if you will send me a copy of the determination supporting your contention, I will send you a one hundred dollar bill. I think this is just one of those times when you get your leg half way down your throat before you realized your foot was in your mouth. x:-)